THE  RELATION  OF  THE  JUDICIARY 
TO  THE  CONSTITUTION 


M 


The 

Relation  of  the  Judiciary  to 

the  Constitution 

> 
,    ,  »*  •>  - 

BY 

WILLIAM  M.  MEIGS 

Author  of  "The  Life  of  John  C.  Calhoun,"  "The  Life  of  Thomas  H. 

Benton,"  "The  Life  of  Charles  Jared  Ingersoll,"  "The  Growth 

of  the  Constitution,"  and  Other  Works 


THE  NEALE  PUBLISHING  COMPANY 

440     FOURTH     AVENUE,     NEW     YORK 
M  CMXIX 


Copyright,  19 19,  by 
William  M.  Meigs 


TABLE  OF  CONTENTS 

CHAPTER  PAGE 

Introduction 7 

I.    The  British  Colonies  in  North  America  .       15 

II.    The   Public  Beliefs   of  Our  Colonial 

Days 30 

III.  Fundamental  Law  and  Coke's  Doctrine 

During  Revolutionary  Days.  Con- 
flicting Legislation  of  the  Period  and 
Its  Effect  on  Public  Opinion     ...       48 

IV.  Our    First    Actual    Judicial    Decisions 

That  Laws  Violated  the  Constitution 
and  Were  Hence  to  be  Held  Void. 
Recognition  of  this  Doctrine.  Its 
Rapid  Spread     ........ 


VII.  The  Constitutional  Convention  of  1787. 
Its  Adoption  of  the  Judicial  Method 
of  Voiding  Unconstitutional  Laws     . 


& 


Rutgers  v.  Waddington.  Other  Like 
Cases  In  State  Courts  Holding  Void 
s  State  Statutes  In  Conflict  With  Fed- 
eral Action.  Congress  Urges  the 
General  Use  of  the  Judicial  Depart- 
ment to  Annul  Such  Laws  of  the 
States 80 


VI.    Review.    Bayard  v.  Singleton.     .     .     .     101 


6SSU7S 


TABLE  OF  CONTENTS 

CHAPTER  PAGE 

VIII.    The  Constitution  Before  the  People, 

and  in  the  Ratifying  Conventions  .     .     158 

IX.    Rapid  Spread  of  the  Doctrine  After  1789     170 

X.  The  Degree  of  Conclusiveness  Attach- 
ing to  Judicial  Decisions.  Early  Be- 
liefs on  the  Subject.    The  Future     .     208 

Index 241 


INTRODUCTION    "V:    s   '    ..*:* 

The  subject  of  the  present  book  has  for  many  years 
been  of  interest  to  the  writer.  Long  ago,  while  still 
a  young  lawyer,  I  was  in  some  way  drawn  to  a  study 
of  the  judiciary  in  relation  to  the  Constitution;  and 
under  the  same  title  as  that  which  now,  late  in  life, 
I  am  placing  upon  this  book,  I  wrote  the  second  of  a 
series  of  law  articles,  to  the  writing  of  which  ill-health 
and  a  dearth  of  practice  had  directed  me. 

I  may  without  vanity  say  that,  prior  to  the  publica- 
tion of  the  article  in  question  in  1885,1  there  was  but 
the  most  insufficient  treatment  of  the  subject  to  be 
found.  Kent's  pages,  and  those  of  Story,  Cooley,  and 
the  other  writers,  would  have  been  searched  in  vain  for 
any  valid  sketch  of  its  history,  either  in  the  Federal 
Convention  or  in  the  early  cases  in  which  it  was  ap- 
plied or  hinted  at. 

As  my  studies  preparatory  to  the  article  went  on  at 
the  time  in  question,  I  was  surprised  at  the  number  of 
cases  in  point  which  I  found;  but  it  must  not  be  sup- 
posed that  these  were  easily  unearthed  from  the  dust 
of  a  century.  The  indices  to  the  old  and  oddly  printed 
reports  of  that  long-ago  day  were  of  no  assistance. 
There  was,  then,  never,  or  rarely,  an  index-heading  of 

1  American  Law  Reviezu   (March- April,  1885),  Vol.  XIX,  pp. 
175-203. 

7 


8  INTRODUCTION 

"Constitution,"  or  "Constitutional,"  or  any  such  ready 
road  by  which  to  find  the  cases  I  sought ;  and  decisions 
that  the  veriest'  tyro  of  an  index-maker  would  to-day 
refer  to  some  sugIj  easy  pigeon-hole,  were  then  sure  to 
be  found  somewhere  adrift  under  "Ejectment,"  "Dis- 
seizin," or  perhaps  "Jury."  The  only  possible  way  to 
find  them  was  to  go  carefully  over  every  item  of  the 
"Index,"  with  the  aid,  too,  of  frequent  reference  to  the 
text  of  the  book  in  hand.  I  well  remember  so  toiling 
through  the  volumes, — not  very  many, — of  law  reports 
of  our  pre-  and  early  Constitutional  period  in  all  the 
old  thirteen  States  and  some  of  the  later  admitted  ones, 
and  unearthing  now  and  then  a  case  in  which  the  men 
of  that  day  had  sketched  out,  though  they  saw  but 
dimly,  a  doctrine  which  has  been  of  vast  influence  upon 
our  history.  And  then  there  followed  for  me  the  inter- 
est of  seeking  further  light  upon  the  particular  instance 
from  other  sources.  Not  so  many  cases  in  all  were 
brought  to  light  by  my  study,  but  they  were  enough  to 
show  that  Marbury  v.  Madison  was  not,  as  so  many 
had  thought  it  was,  the  fons  et  origo  of  our  very  re- 
markable judicial  power. 

My  article  once  published,  it  became,  of  course,  at 
once  public  property,  and  its  stones  were  ere  long 
taken  down  and  used  (so  Huxley,  I  think,  put  it)  as 
the  rubble  for  roads  of  study  by  others.  It  thus  served 
a  good  purpose,  and  some  cases  were  added  by  stu- 
dents, or  those  I  had  found  were  further  elucidated, 
while  for  a  time  active  interest  rather  ceased  for  me. 
This,  however,  was  again  aroused  when  the  partially 
completed  work  of  Brinton  Coxe  on  "Judicial  Power 


INTRODUCTION  9 

and  Unconstitutional  Legislation"  was  put  into  my 
hands  after  his  death,  and  at  his  request,  for  the  pur- 
pose of  my  editing  it.  He  had  talked  with  me  on  the 
general  subject,  while  I  soon  learned  a  deal  from  his 
pages;  among  other  things  that  the  American  Doc- 
trine was  by  no  means  the  absolutely  new  departure  in 
governmental  science  that  my  rather  narrow  path  of 
study  had  led  me  to  think  it.  Not  many  more  years, 
then,  went  by  before  I  learned  that  an  onslaught  was 
being  made  by  some  writers  on  our  American  beliefs 
and  actions  on  this  subject  of  more  than  a  century. 
I  answered  (as  did  also  others)  these  attacks  in  an 
article  of  1906,2  and  in  another  of  1913;3  but  it  is  not 
for  me  to  say  with  what  success  in  point  of  reason. 

Certainly,  however,  with  none  in  point  of  effect,  for 
our  critics  have  gone  on  undeterred,  in  spite  of  all  the 
very  plain  and  palpable  facts  of  our  history.  Their 
numbers  have,  moreover,  beyond  doubt  increased. 
Those  who  consider  and  call  themselves  "Progres- 
sives" have,  many  of  them,  taken  up  the  hue  and  cry, 
and  to-day  our  ancient  doctrine  is  traversed  and  cer- 
tainly in  danger  of  being  rejected,  or  perhaps  confessed 
and  then  avoided  through  some  by-way.  It  is  one 
more  instance  of  that  itch  for  mere  change  which  is 
so  conspicuously  to  be  seen  among  our  public  men  of 
to-day. 

Some  of  the  protagonists  of  the  discovery  that  our 
American  Doctrine  was  a  Great  Usurpation  have, 
moreover,  had  the  satisfaction  in  recent  years  of  see- 

2  American  Law  Review    (March-April,   1885),  Vol.  XL.  pp. 
641-670. 
•Ibid.,  Vol.  XLVII,  pp.  683-696. 


io  INTRODUCTION 

ing  their  diatribes  printed  in  one  way  or  another  at 
public  expense,  or  even  as  part  of  the  Congressional 
Record,  then  franked  far  and  wide,  to  influence  public 
opinion,  while  we  conservatives  of  the  Great  Mob  of 
our  American  one  hundred  millions  only  occasionally 
speak  out,  and  then  have  no  Public  Printer  back  of  us. 
It  shows,  again,  how  true  is  the  belief  that  a  clamorous 
minority  will  often  drown  by  its  vociferations  the 
sober  opinion  of  the  real  majority.  And  we  who  be- 
lieve in  this  part  of  our  inherited  and  long-tried  system 
must  not  deceive  ourselves.  There  is  the  gravest  dan- 
ger that  this  noisy  minority  will  lead  the  country 
largely,  even  entirely,  to  abandon  its  canons  and  laws 
and  to  launch  out  upon  evil  ways,  much  to  its  detri- 
ment, precisely  as  a  street  mob  will  often  follow 
courses  far  worse  than  the  average  desire  of  its 
members. 

It  is  the  conviction  of  this  danger  that  has  led  me 
once  more  to  take  up  the  subject  of  Judicial  Power. 
To-day  many  have  treated  the  various  phases  of  the 
origin  of  the  American  Doctrine,  and  a  vast  deal  of 
matter  bearing  on  its  history  and  nature  has  been 
gathered  together  by  various  writers;  but  I  feel  that 
the  subject  will  bear  still  another  treatment.  This 
should,  in  my  opinion,  be  altogether  historical  in 
method,  and  some  phases  of  the  very  early  growth  of 
that  Doctrine  are  happily  now  far  more  accessible  than 
was  the  case  even  less  than  a  decade  ago. 

Early  colonial  doings  prepared  the  ground,  and  the 
seed  then  planted  was  already  sprouting  at  and  before 
the  Federal  Convention,  and  then  quickly  grew  into 


INTRODUCTION  n 

our  American  Doctrine  almost  as  necessarily  as  the 
sowing  of  wheat  results  in  the  growth  of  the  chief  food 
of  the  world.  It  was  an  evolution,  slowly  made  step  by 
step,  and  long  with  little  knowledge  of  whither  it 
would  lead,  precisely  as  is  the  case  with  all  such  evolu- 
tions in  public  affairs,  but  we  can  see  to-day  (if  we  do 
not  perversely  shut  our  eyes)  that  the  result  was  about 
as  foreordained  from  the  circumstances  as  is  the  pos- 
session of  its  wonderful  power  of  scent  to  a  pure- 
blooded  pointer-puppy.  In  my  opinion,  the  evidence 
accessible  to-day  is  a  demonstration,  only  less  certain 
than  those  of  astronomy  and  mathematics,  that  the 
Judiciary  was  plainly  pointed  out  by  our  history  for 
the  vast  function  it  has  exercised,  and  that  it  was  ex- 
pected and  intended,  both  by  the  Federal  Convention 
and  the  opinion  of  the  publicists  of  the  day,  to  exercise 
that  function. 

Shall  the  American  people  abandon  this  principle  at 
the  very  rime  when  much  of  it  is  being  adopted  as 
desirable  by  many  other  growing  peoples,  and  when 
the  problems  of  government  sure  to  follow  on  the  vast 
war  of  to-day  seem  to  promise  more  federations, — 
perhaps  infinitely  greater  than  any  now  known, — 
which  will  need  some  such  system  to  hold  the  members 
quietly  in  control  under  ordinary  circumstances?  It 
is  amazing  how  far  and  wide  throughout  the  world  our 
American  Doctrine  has  spread;  the  reason  for  its  dis- 
semination being  surely  because  it  filled  a  need  and 
offered  a  well-tried  means,  instead  of  being  some  sup- 
posed new  panacea,  which  would  almost  certainly  fol- 


12  INTRODUCTION 

low  the  course  of  most  such  cures,  and  break  down  in 
a  few  years. 

Not  only  have  Canada  and  Australia  followed  our 
lead  in  this  matter,  but  the  same  has  been  the  case 
in  the  still  newer  South  African  Republic,  in  New 
Zealand,  and  in  Argentina,  Bolivia,  Colombia,  Cuba, 
Mexico,  Rumania  and  Venezuela,  as  well  as  in  Fin- 
land as  against  a  Russian  law,  while  the  very  "Mother 
of  Parliaments,"  after  having  watched  the  working 
of  the  system  for  several  decades  in  one  of  her  older 
offspring,  has  not  only  approved  of  it  more  recently 
for  younger  ones,  but  is  now  thinking  of  adopting  it 
for  the  government  of  Great  Britain  herself,  in  the 
new  relations  with  Ireland  under  the  proposed  Home 
Rule  Bill.4  France,  too,  we  are  told,  is  tending  in  the 
same  direction.  "In  recent  years,"  writes  Prof.  Gar- 
ner of  the  University  of  Illinois,  "there  has  been  an 
interesting  and  very  remarkable  extension  of  judicial 
control  over  the  administrative  authorities  in  France," 
and  this  growth  seems  not  to  be  at  all  confined  to  mat- 
ters of  administration  alone  but  to  extend  to  all 
branches  of  law,  as  well  as  to  have  the  approval  of 
many  students  of  jurisprudence.5     Verily,  here  is  a 

4 1  considered  shortly  the  instances  of  Canada  and  Australia 
in  1006  in  my  article  "Some  Recent  Attacks,"  etc.,  in  40  Ameri- 
can Law  Review,  pp.  667,  668.  See  the  same  treated  more  fully 
in  "Report  of  the  Committee  on  the  Duty  of  Courts  to  Refuse  to 
Execute  Statutes  in  Contravention  of  the  Fundamental  Law," 
presented  at  the  38th  Annual  Meeting  of  the  New  York  State 
Bar  Association,  held  at  Buffalo,  January  22  and  23,  1915,  pp. 
34-43.     The  other  instances  are  taken  from  ibid.,  pp.  43-50. 

"James  W.  Garner's  "Judicial  Control  of  Administrative  and 
Legislative  Acts  in  France,"  in  American  Political  Science  Re- 
view, Vol.  IX,  pp.  637-665.    Prof.  Garner  writes  that  the  question 


INTRODUCTION  13 

formidable  array  of  practical  endorsement  to  be  some- 
how explained  away  by  the  critics  of  our  American 
System. 

And  yet,  in  the  face  of  all  this,  we  are  noisily  urged 
by  the  "Progressives"  to  abandon  our  long-tried  sys- 
tem, widely  adopted  though  it  has  been  by  other  peo- 
ples, and  to  drift  off — into  What?  There  are  undoubt-  -, 
edly  evils  in  our  existing  system,  and  the  courts  have 
made  many  an  absurd  and  harmful  decision;  but  the 
fire  is  hot  as  well  as  the  frying-pan.  Let  Congress 
(and  the  State  Legislatures?)  have  the  right  to  pass 
what  law  it  will,  or  what  law  its  majority  may  please 
to  think  constitutional,  and  where  shall  we  find  our- 
selves? With  all  our  roots  entwined  around  the  exist- 
ence of  the  right  of  Judicial  Review,  how  can  Congress, 
untrammeled  by  that  long-inherited  principle,  be  trust- 
ed? Its  members,  and  all  the  land,  have  too  long  de- 
pended on  the  courts  to  right  the  wrongs, — unwittingly, 
hastily,  or  in  passion, — perpetrated  upon  the  rights  of 
a  minority;  and  it  is  not  in  human  nature  that  they 
should  now  cast  off  the  customs  grown  up  in  a  long 
course  of  years,  and  quickly  become  Constitutional  stu- 
dents, or  scrupulously  careful  of  the  rights  of  others. 

Grave  danger  of  radical  and  revolutionary  courses 
lurk  hidden  in  any  such  change;  and  we  had  best  be 
very  slow  to  make  it,  until  we  have  carefully  studied 
the  matter  in  all  its  collateral  consequences,  or  we  may 

has  in  recent  years  provoked  widespread  discussion,  and  "the 
American  doctrine  has  been  defended  by  many  jurists,"  of  whom 
he  names  twelve.  "Prof.  Duguit,"  he  adds,  "thinks  it  is  only  a 
question  of  time  when  the  American  practice  will  be  introduced 
in  France."    See  pp.  661  and  664. 


i4  INTRODUCTION 

well  once  more  find  ourselves  in  the  predicament  into 
which  recent  methods  have  so  often  led  us;  that  of 
hastily  adopting  a  half -thought-out  new  law  and  then 
soon  awaking  to  the  consciousness  that  the  new  con- 
dition is  worse  than  the  old  one,  and  of  longing  to 
repeal  the  supposed  sure-cure. 

William  M.  Meigs. 
Philadelphia. 


The  Relation   of  the  Judiciary 
to  the  Constitution 

CHAPTER  I 

THE   BRITISH    COLONIES   IN    NORTH   AMERICA 

The  founding  of  the  British  Colonies  in  America 
was  an  event  of  vast  importance  to  the  world,  and  to 
the  present  study  was  of  course  absolutely  vital.  Those 
hardy  immigrants  to  the  wilds  of  the  New  World 
sprang  from  the  loins  of  a  people  who  had  already 
laid  the  foundations  of  Popular  Government.  The 
colonists  bore  with  them  this  great  germinal  principle, 
and  their  circumstances  in  the  new  home  tended 
strongly  to  foster  its  growth.  No  paternal  system  at 
home  guided  and  controlled  their  steps  in  America, 
nor  was  an  organized  system  of  society  brought  with 
them.  There  were  of  course  leaders,  who  were  looked 
up  to  and  had  far  more  power  than  the  poor  and  lowly, 
but  in  the  main  their  society  was  based  on  a  democracy 
of  a  very  advanced  type  for  that  day. 

They  had  not  only  to  conquer  nature  but  also  to  es- 
tablish a  new  government  and  a  new  social  system. 

15 


16  THE  RELATION  OF  THE 

Those  that  they  had  left  could  not  be  adopted,  for  the 
elements  to  which  to  attach  them  were  quite  wanting, 
and  the  colonists  had  to, — as  they  did, — reject  some 
portions  of  the  old,  while  at  the  same  time  they 
molded  many  other  parts  to  their  new  surroundings. 
The  different  settlements  varied  in  their  solutions  of 
these  problems,  but  in  every  one  popular  government 
found  a  leading  place.  The  individual  bulked  large. 
Add  to  this  the  often-aiding  hand  of  the  home  govern- 
ment, which  by  no  means  let  the  colonies  go  off  en- 
tirely on  their  own  responsibility, — a  hand  that  meant 
to  guard  them  from  themselves,  as  well  as  to  exploit 
them  and  make  them  profitable  to  the  home  country, — 
and  we  have  plenty  of  material  with  which  to  develop 
something  very  new. 

It  was  rather  a  haphazard  method,  very  wanting  in 
unity  of  direction,  as  was  indeed  the  system  of  the 
home-country  as  well.  Both  systems  were  governments 
of  compromise.  In  neither  was  the  Executive  very 
strong,  and  that  preparedness,  of  which  we  hear  so 
much  nowadays  was  conspicuous  only  by  its  absence. 

In  the  early  days  in  this  country,  the  far  more  pre- 
pared French,  guided  by  an  Executive  which  was  the 
State,  owned  in  reality  the  Continent  and  ought  to 
have  forever  remained  its  master;  but  despite  the  fact 
that  they  at  first  concentrated  their  energies  far  more 
quickly  than  the  English,  and  long  promised  to  control 
everything,  the  saving  leaven  of  democracy  gave  the 
victory  to  the  latter.  That  individualism,  which  is  a 
part  of  democracy  and  which  taught  the  Englishman 
and  his  colonist  to  take  care  of  himself  under  all  cir- 


JUDICIARY  TO  THE  CONSTITUTION    17 

cumstances,  was  an  interstitial  force  binding  all  the 
inhabitants  together  and  bringing  into  play  the  utmost 
power  of  every  single  individual  composing  the  society, 
much  like  the  atomic  force  of  matter,  and  it  soon  swept 
to  ruin  all  the  power  of  the  French  Executive  and  all 
its  preparedness. 

But  of  this  only  these  few  words  in  passing,  in 
order  to  direct  attention  to  some  of  the  ingredients 
which  were  contained  in  the  caldron  in  which  was  to 
originate  along  the  Atlantic  Coast  of  North  Amer- 
ica,— always  from  the  old  materials  slowly  shaped  to 
our  needs,  with  many  a  turbulent  struggle,  yet  with  no 
little  conservatism, — much  that  was  new  in  the  admin- 
istration of  human  affairs. 

It  has  been  said  that  the  British  did  not  mean  to  let 
their  colonies  drift  off  on  their  own  course,  but  rather 
to  use  them  for  the  profit  of  the  home-country,  in  ac- 
cordance with  the  ideas  of  the  time.  They  well  knew 
that  raw  colonists  would  pass  many  a  callow  law 
and  adopt  methods  by  no  means  wanted  at  home ;  and 
from  the  start  the  home  government  aimed  to  prevent 
this,  in  time  developing  a  system  for  the  purpose, 
which  was,  beyond  doubt,  of  great  influence  in  leading 
to  that  judicial  power  with  which  this  book  has  to  do. 

Hence,  in  conferring,  as  English  principles  de- 
manded should  be  done,  the  right  to  create  something 
like  a  Parliament,  the  several  colonies  were  by  no 
means  given  a  general  power  to  legislate,  but  were  in 
every  case  limited  to  the  passing  of  laws  consonant 
with  their  charter,  or  in  accordance,  as  near  as  might 
be,  with  the  laws  of  England ;  and  means,  which  were 


18  THE  RELATION  OF  THE 

in  the  main  very  effective,  were  found  to  enforce  these 
limitations,  especially  as  the  colonies  grew  in  popula- 
tion and  power,  and  hence  in  the  tendency  to  break 
away  from  restraints.  The  colonists  were  a  stiff- 
necked  people,  and  in  numbers  of  cases  managed  to 
carry  out  their  own  wishes;  but  the  people  in  the 
old  home  were  also  stiff-necked,  and  they  held  the 
colonial  legislatures  in  many  instances  pretty  closely 
to  the  limitations  to  which  they  had  been  subjected. 

One  of  the  methods  of  attaining  this  end  was  through 
the  Privy  Council,  which  ere  long  appointed  a  com- 
mittee to  examine  the  laws  of  the  colonies  and  to 
report  upon  their  legality.  Not  all  the  colonies  were 
required,  as  Pennsylvania  was,  to  submit  their  laws 
to  the  King  in  Council ;  but  the  Crown  found  ways  by 
those  indirect  methods  which  often  play  a  greater  part 
in  development  than  do  positive  provisions,  to  induce 
every  one  of  our  thirteen  colonies  to  submit  its  laws  to 
this  scrutiny. 

The  Committee  of  the  Privy  Council,  and  later  the 
Lords  of  Trade  and  Plantations  and  the  Board  of 
Trade,  submitted  the  laws  so  sent  to  a  most  careful 
examination  as  to  their  legality, — or  constitutionali- 
ty, for  this  very  word  of  modern  times  was  already 
occasionally  used.  The  laws  were  referred  first  to 
their  counsel, — long  regularly  employed  for  this  pur- 
pose,— and  he  scrutinized  the  alleged  statute  with  that 
meticulous  search  for  fault,  which  is  so  characteristic 
of  the  profession  of  the  lawyer.  If  it  was  reported 
to  violate  the  provisions  of  the  charter  in  any  way,  or 
to  concern  a  subject  on  which  legislation  was  not  au- 


JUDICIARY  TO  THE  CONSTITUTION    19 

thorized,  or  if  it  was  contrary  to  some  particular  Act 
of  Parliament,  or  was  not  in  the  main  in  accordance 
with  the  laws  of  England,  the  Committee  of  the  Coun- 
cil or  the  Board  of  Trade  would  recommend  its  dis- 
allowance, and  of  course  this  recommendation  would 
be  followed  by  the  King  in  Council.  Full  many  a 
popular  pet  of  legislation  in  various  colonies  came  to 
an  untimely  end  by  this  means;  and  the  whole  subject 
was  one  of  much  interest  in  the  colonies,  both  to  the 
mass  of  the  people  and  to  leading  public  men. 

Quite  a  system  grew  up  in  the  matter.  The  agents 
maintained  in  Great  Britain  by  many  of  the  colonies 
had  for  a  main  duty  to  see  that  the  laws  passed  were 
not  disallowed,  and  they  always  followed  their  course 
and  appeared  to  argue  the  question  of  legality.  At  times 
some  one  having  an  interest  against  a  law  would  call 
the  attention  of  the  Board  of  Trade,  or  of  the  King  in 
Council,  to  an  alleged  want  of  legality  in  a  particular 
statute;  and  then  hearings  would  be  had,  arguments 
presented  on  both  sides,  and  perhaps  evidence  taken, 
until  the  Board,  with  all  these  aids,  should  make  its 
recommendation  to  the  King.  Those  who  complained 
against  laws  were  very  often  merchants;  and  the 
reader  can  make  a  shrewd  guess  as  to  the  character 
of  many  laws  such  as  merchants  would  complain  of. 
The  easy  and  very  prompt  collection  of  debts  was  to 
their  interest,  while  the  colonists  wanted  to  protect 
themselves  from  being  ground  too  hard,  and  to  allow 
debtors  plenty  of  time.  Various  forms  of  bankruptcy 
laws,  legal  tender  acts,  stay-laws,  statutes  of  limita- 
tion, provisions  as  to  usury, — these  were  all  favorites 


20  THE  RELATION  OF  THE 

of  the  colonists;  while  the  British  merchant  seemed 
\  often  to  want  for  himself  the  last  pound  of  flesh  of 
the  unfortunate  debtor.1  It  is  a  struggle  doubtless  as 
old  as  trading  itself. 

In  late  years  several  examinations  have  been  made 
of  English  records  relating  to  the  practice  and  general 
methods  employed  in  the  scrutiny  of  colonial  legisla- 
tion by  the  King  in  Council.  Of  these,  two  very  recent 
ones2  are  particularly  extensive  and  careful,  and  have 
been  relied  upon  for  the  purposes  of  this  book.  The 
results  reached  by  both  investigators  are  in  general 
alike,  and  the  thanks  of  American  students  are  due 
to  these  two  gentlemen  for  the  long  weeks  of  hard 
study  they  have  devoted  to  their  task  in  a  foreign 
country  and  far  from  home. 

The  colonial  essays  at  legislation  were  indeed  sub- 
ject to  the  closest  examination, — and  they  needed  it. 
Often  crude  beyond  belief, — with  one  department  of 
government  making  the  widest  incursions  into  the  field 
of  another,  and  with  at  times  far  too  little  regard  paid 
to  vested  rights  and  even  to  fundamental  principles 
of  liberty, — those  early  legislative  assemblies  did  cer- 
tainly need  a  guiding  hand,  even  though  it  be  the  case 
that  they  were  at  times  far  too  much  cabin'd,  cribb'd, 
confin'd,  by  their  guardian  and  stepmother  in  her 
own  interest.     They  were  as  yet  by  no  means  fit  for 

1  Oliver  Morton  Dickerson's  "American  Colonial  Government," 
pp.  252,  253. 

'Oliver  Morton  Dickerson,  "American  Colonial  Government," 
"The  Review  of  American  Colonial  Legislation  by  the  King  in 
Council,"  by  Elmer  Beecher  Russell  (Columbia  University  Stud- 
ies in  History,  Economics  and  Public  Law,  Vol.  LXIV,  Num- 
ber 2). 


JUDICIARY  TO  THE  CONSTITUTION    21 

what  has  been  well  called  "the  responsible  business  of 
legislation." 

The  Board  of  Trade  had  regular  counsel,  to  whom 
the  laws  were  referred,  and  we  are  told  by  one  of 
these  recent  students  that  the  question  most  frequently 
asked  by  the  Board  of  their  counsel  was  as  to 

the  legality,  or  what  might  now  be  termed  the  constitu- 
tionality of  legislation.  Had  the  colonial  legislature  ex- 
ceeded its  power  and  authority  in  passing  the  law  ?  Were 
its  provisions  unwarranted  under  the  terms  of  the  pro- 
vincial charter,  or  in  conflict  with  an  Act  of  Parliament? 
The  Board  inquired,  for  example,  whether  two  acts  of 
North  Carolina  were  proper  consistently  with  the  just 
rights  of  the  inhabitants  and  the  constitution  of  said 
Province?  And  three  private  acts  granting  decrees  of 
divorce,  they  referred  to  the  attorney  and  solicitor  upon 
a  matter  of  doubt  whether  the  legislature  of  the  Province 
of  Massachusetts  Bay  or  any  other  Colony  has  a  power 
of  passing  Laws  of  this  nature,  and  consequently  whether 
these  laws  are  not  of  themselves  null  and  void.  And,  to 
give  one  example  among  many,  a  naturalization  law  of 
New  Jersey  was  sent  to  the  solicitor  with  an  inquiry,  as 
to  how  far  it  was  consistent  with  the  act  of  Parliament 
of  "12  Charles  II  ...  or  other  acts  of  Parliament."3 

Again,  we  are  told  that 

In  numerous  instances,  the  Council  declared  laws  in- 
consistent with  the  terms  of  a  provincial  charter,  and 
therefore  void.  Several  objectionable  Acts  passed  by 
the  proprietary  governments  of  the  Carolinas  were  an- 
nulled upon  the  broad  ground  that  being  repugnant  to 

•  Russell's  "Review  of  Colonial  Legislation,"  pp.  63,  64. 


22  THE  RELATION  OF  THE 

the  laws  of  England,  they  constituted  a  violation  of  the 
law-making  power  conferred  by  the  charter.  .  .  .  Mas- 
sachusetts lost  several  laws  which  were  deemed  incon- 
sistent with  her  charter.  In  these  cases,  however,  dis- 
allowance was  based  upon  more  specific  grounds.  .  .  . 
Jackson,  who,  as  king's  counsel,  loved  to  play  with  large 
abstractions,  frequently  based  his  criticism  upon  the 
broad  ground  that  the  law  constituted  a  violation  of  the 
British  constitution,  or,  in  other  words,  that  it  failed  to 
maintain  the  English  standard  of  legal  justice.4 

A  law  of  North  Carolina,  enacting  that  no  one  but 
barristers  of  five  years  in  one  of  the  Inns  of  Court 
in  England  should  become  a  judge,  was  disallowed, 
because  "this  was  deemed  'an  unconstitutional  restraint 
upon  the  power  of  appointing  judges.'  "5  And  a  law 
in  the  Bahamas  prohibiting  any  appeal  to  the  Privy 
Council  "was  deemed  'altogether  inconsistent  with  the 
constitution  of  the  Colony.'  "6 

The  general  result  is  said  to  have  been  that 

in  such  policies  as  the  crown  chose  to  maintain  consist- 
ently and  without  compromise  the  colonies  learned  to 
acquiesce ;  for  against  a  disallowance  followed  by  an  in- 
struction to  the  Governor  forbidding  his  assent  to  any 
future  act  of  like  purport,  the  popular  party,  as  a  rule, 
could  make  little  or  no  headway.  ...  By  reason  of 
many  annulments  the  colonists  learned  to  respect  the  per- 
sonal rights  and  private  property  of  individuals  and  to 

4  Russell's  "Review  of  Colonial  Legislation,"  pp.  147,  150. 
'Ibid.,  p.  189. 
6  Ibid.,  p.  191. 


JUDICIARY  TO  THE  CONSTITUTION    23 

abide  by  the  forms  and  larger  precedents  of  English 
law.7 

A  large  number  of  colonial  laws  came  to  an  untimely 
end  by  virtue  of  this  sifting  process.  Of  about  8,500 
acts  submitted  by  the  continental  colonies,  some  469 
(or  5.5  per  cent)  were  disallowed.  The  percentage 
varied  widely  in  different  colonies,  but  was  in  general 
so  large  as  to  bring  the  whole  subject  to  popular  at- 
tention, as  will  shortly  be  shown  from  the  records  of 
the  day.8 

There  was  another  means  by  which  the  home-coun- 
try held  the  far-distant  colonies  to  methods  in  general 
consonance  with  her  own,  and  of  which  she  approved. 
The  system  of  appeals  from  colonial  judicial  decisions 
to  the  same  Privy  Council,  which  (as  has  just  been 
shown)  disallowed  statutes,  is  referred  to.  These  ap- 
peals were,  of  course,  not  of  daily  occurrence,  but  they 
were  in  quite  sufficient  number  to  make  a  deep  impres- 
sion. Between  1680  and  1780,  "the  most  significant 
period  of  the  operation  of  the  appellate  system,"  we 
are  told  that  no  less  than  265  cases  reached  the  Privy 
Council  from  the  continental  colonies  of  England. 
Seventy-eight  of  these  cases  came  from  Rhode  Island, 
53  from  Virginia,  44  from  Massachusetts,  21  from 
New  York,  13  from  Pennsylvania,  12  each  from  New 
Jersey  and  New  Hampshire,  and  9  from  Connecticut. 
There  were  76  reversals.9 

7  Ibid.,  pp.  204,  205. 

8  Ibid.,  p.  221,  or  Dickerson's  "Colonial  Government,"  p.  227. 
See  infra,  pp.  26-29. 

8  "Colonial  Appeals  to  the  Privy  Council,"  by  Arthur  Meier 
Schlesinger,  Political  Science  Quarterly,  Vol.  XXVIII,  p.  446. 


24  THE  RELATION  OF  THE 

This  judicial  method  of  control  was,  of  course,  to 
the  scientific  lawyer  quite  different  from  the  executive 
disallowance  of  laws  already  referred  to,  but  to  the  lay- 
man, uneducated  in  the  mysteries  of  law  and  politics, 
the  difference  was  far  from  plain.  To  the  popular 
mind,  the  two  methods  must  have  seemed  much  the 
same,  and  each  resulted  in  the  undoing  of  some  policy 
in  public  affairs  that  the  colony  concerned  had  enacted. 
Even  in  modern  days  learned  historians  differ  upon 
the  question  whether  some  particular  instance  enacted 
not  far  from  two  hundred  years  ago  falls  into  the  one 
class  or  the  other.10 

The  whole  system  which  we  have  been  considering, 
and  particularly  the  veto  which  the  Privy  Council  often 
put  on  laws  passed  and  most  strongly  desired  in  the 
colonies,  was  very  vital  to  the  dwellers  in  the  New 
World.  Bitter  contests  arose  in  some  cases  over  it,  and 
in  numerous  instances  the  hard-headed  colonists  strug- 
gled in  many  ways,  after  the  disallowance,  to  secure 
their  own  will  and  get  into  legal  form  on  the  statute- 
books  laws  and  principles  which  the  mass  of  their 
people  eagerly  desired.  Laws,  which  had  been  once 
disallowed,  were  often  reenacted,  perhaps  with  some 
little  modification  so  as  to  look  less  like  defiance,  and 
this  would  even  be  done  several  times  in  succession; 
thereby  in  some  instances  the  law  would  be  maintained 

Cf.  "Appeals  from  Colonial  Courts  to  the  King  in  Council,  with 
Especial  Reference  to  Rhode  Island,"  by  Harold  D.  Haseltine, 
in  "Annual  Report  of  the  American  Hist.  Assn.,"  1894,  p.  337. 
18  Coxe's  "Judicial  Power  and  Unconstitutional  Legislation," 
p.  212,  holds  the  action  to  have  been  partly  legislative  and  partly 
judicial. 


JUDICIARY  TO  THE  CONSTITUTION    25 

in  effect  during  the  long  period  that  often  elapsed 
between  its  colonial  enactment  and  the  arrival  of  news 
that  it  had  been  again  disallowed.11 

There  were  other  devices  or  accidents  by  which  the 
colonies  had  occasionally  a  measure  of  success.  Some- 
times, notice  of  disallowance  failed  to  reach  the  colo- 
nial authorities,  or  possibly  the  latter  intentionally 
neglected  to  enter  the  disallowance  upon  the  law  books. 
Thus  Gov.  Cadwallader  Colden  wrote  to  the  Board  in 
1 761  that  he  was 

told  that  several  acts  in  Basket's  edition  of  the  acts  of 
New  York  in  1718  are  noted  to  be  repealed,  of  which 
not  the  least  evidence  appears  anywhere  in  the  Province. 
.  .  .  I  make  no  doubt  the  judges  continue  to  proceed 
upon  them  as  of  force. 

A  Virginia  law,  which  had  been  disallowed,  was  in 
reality  carried  out  for  nearly  thirty  years.  One  in 
New  Hampshire  had  a  still  longer  unauthorized  ex- 
istence of  over  half  a  century;  and  the  repeal  of  a 
Massachusetts  law  "establishing  the  township  of  Dan-  /  M  ' 
vers"  was  for  one  reason  or  another  never  observed  ' 
in  the  colony.12 

Many  of  these  difficulties  and  strange  results  were 
doubtless  owing  to  the  slowness  of  communication  in 
that  day.  It  is  not  easy  for  us  to  realize  how  utterly 
unreliable  this  was,  but  there  was,  for  instance,  no 
regular  mail  service  of  any  kind  to  or  from  the  colonies 

"Russell's  "Review  of  Colonial  Legislation,"  pp.  210-212. 
"Ibid.,  pp.  212,  213.     "New  York  Colonial  Documents,"  Vol. 
VII,  pp.  454,  455- 


26  THE  RELATION  OF  THE 

until  1755.  Letters  from  North  Carolina,  we  are 
told,  went  usually  by  way  of  Virginia,  and  letters  for 
Virginia  frequently  came  out  by  way  of  New  York. 
Even  the  colonies  having  direct  communication  with 
England  were  not  much  better  off,  for  vessels  came  in 
quite  unannounced  and  went  off  whenever  ready. 

In  1754  the  Board  wrote  the  Governor  of  North 
Carolina  that  it  had  not  heard  from  him  for  three 
years ;  and  he  answered  a  year  later  that  he  was  sur- 
prised at  their  communication,  which  had  just  reached 
him,  and  added  that  he  had  been  a  regular  correspon- 
dent. His  letters  may  have  been  lost,  or  perhaps  he  was 
lying;  but  other  communications  of  his  seem  to  show 
that  two  years  and  a  half  were  required  at  times  for 
a  letter  to  cross  the  ocean,  and  that  letters  to  him  often 
passed  from  hand  to  hand  all  the  way  across  Virginia 
and  North  Carolina.  Those  for  England  had  often  to 
be  entrusted  to  the  captain  of  any  sailing  vessel,  bound 
for  another  port,  and  he  would  there  have  to  transfer 
them  to  some  captain,  by  whom  they  might  finally 
reach  England.  And  even  in  the  home-country  there 
were  great  delays,  and  letters  occasionally  lay  for  long 
periods  at  the  Custom  House.13  We  need  not  wonder 
that  the  consequent  delays  were  such  as  to  lead  to  the 
most  incongruous  results. 

The  instances,  which  have  been  cited,  of  laws  dis- 
allowed and  of  reversals  of  judicial  decrees  of  the 
colonies,  though  they  are  far  from  numerous,  indi- 
cate plainly  enough  that  the  main  principles  on  which 
"  Dickerson's  "American  Colonial  Government,"  pp.  133-137. 


JUDICIARY  TO  THE  CONSTITUTION    27 

they  rested  were  of  vital  interest  to  the  colonists,  and 
by  no  means  known  only  to  public  men.  Other  indica- 
tions, too,  tell  the  same  story,  and  show  that  the  disal- 
lowance, and  the  setting  aside  of  laws  by  the  distant 
power  across  the  seas,  entered  into  the  daily  life  of 
the  colonists,  and  was  widely  known  and  understood 
among  the  masses  of  the  people.  Thus,  letters  from 
some  Governors  are  extant,  telling  the  Board  of 
Trade  that  the  disallowance  of  a  popular  law  had 
excited  considerable  ill-feeling  against  the  merchant- 
class,  which  had  been  active  in  breaking  down  the 
law  in  question;  and,  again,  governors'  letters,  and 
even  protests  from  the  assemblies,  show  restiveness 
and  resentment  arising  from  the  loss  of  some  colonial 
law  eagerly  desired  by  popular  opinion.  In  at  least 
one  instance,  a  riot  resulted  from  the  disallowance.14 

The  fear  that  laws  might  meet  with  this  mishap 
was,  moreover,  constantly  before  colonial  legislators; 
and  I  think  it  is  well  known  that  the  advocates  of  spe- 
cial statutes  were  often  warned  in  debate  that  the 
proposed  measure  was  beyond  the  powers  conferred 
by  their  charter,  and  would,  if  enacted,  be  held  void 
for  this  reason.  At  least,  the  legislatures  had  the 
fear  of  such  a  result  ever  before  their  eyes,  and 
took  means  to  avoid  it.  In  Pennsylvania,  for  instance, 
where  a  period  of  five  years  was  allowed  for  the 
submission  of  laws  to  the  King,  the  legislators  would 
pass  a  law  limited  as  to  its  duration  to  a  shorter  period, 
and  would  then,  about  the  time  of  its  expiration,  re- 

14  Russell's  "Review  of  Colonial  Legislation,"  pp.  yy,  221. 


28  THE  RELATION  OF  THE 

enact  it.  Sometimes  they  were  even  bolder  and  would 
openly  reenact  a  disallowed  law,  in  at  least  much  the 
same  words.15 

One  more  proof  of  the  wide  knowledge  of  all  this 
among  the  people  comes  from  a  much  later  source. 
The  Declaration  of  Independence  was  a  wonderful 
paper  and  full  of  stirring  thoughts,  but  it  was  also 
meant  as  an  appeal  to  the  feelings  and  prejudices  of 
the  masses.  The  lawyers,  who  drew  and  adopted  it, 
omitted  few  elements  which  would  tend  to  add  to  its 
popularity,  and  in  the  fact  that  no  less  than  eight  of 
its  counts  against  the  Crown  were  based  on  the  dis- 
allowance of  statutes,  claimed  to  be  essentially  needed 
by  the  colonies,  may  doubtless  be  found  one  more  con- 
clusive proof  that  the  disallowance  of  statutes  by  the 
Crown  in  Council,  was  in  its  day  a  matter  of  vital 
moment  to  the  colonists  and  well-known  to  the  vast 
majority  of  those  who  had  any  knowledge  whatsoever 
of  public  affairs. 

The  colonists  came  insensibly  and  quite  inevitably 
to  feel  in  their  daily  life,  that  apparent  laws  passed  in 
strict  accordance  with  all  the  forms  by  their  legisla- 
ture, and  often  after  long  popular  agitation,  might 
turn  out  to  be  no  laws  at  all  but  void,  because  not 
authorized  to  be  passed  under  the  terms  of  a  funda- 
mental law  of  higher  authority.  To  them,  all  their 
legislatures  were  closely  restricted  and  could  not  legally 
(or,  as  we  now  say,  "constitutionally")   violate  the 

a  "Chronicles  of  Pennsylvania,  1688- 1748,"  by  Charles  P.  Keith, 
Vol.  I,  pp.  154,  155. 


JUDICIARY  TO  THE  CONSTITUTION   29 

limitations  of  the  instrument  under  which  they  existed. 
If  the  effort  to  do  so  were  made,  another  agency 
would  solemnly  annul  the  statute  passed  and  declare 
it  void. 


CHAPTER  II 

THE  PUBLIC  BELIEFS  OF  OUR  COLONIAL  DAYS 

The  grooves  or  ruts  of  thought  of  various  ages  of 
the  world  differ  widely,  and  it  is  a  very  great  error 
to  cast  back  modern  beliefs  and  try  to  read  by  their 
light  the  civilization  and  methods  of  a  past  time. 
The  frame  of  thought,  the  very  language  in  which 
we  talk  of  government  or  any  other  agency,  has  a 
vital  influence  upon  our  beliefs.  The  theory  of  man 
in  a  state  of  nature,  which  had  such  vogue  after 
Rousseau's  time,  was  doubtless  from  one  point  of 
view  nonsense, — for  no  such  state  ever  did  or  could 
exist, — but  it  had  none  the  less  a  potent  influence  on 
the  beliefs  of  humanity,  and  aided  greatly  to  spread 
afar  a  belief  in  the  Rights  of  Man.  That  Democracy 
for  which  the  world  is  now  struggling  and  the  great 
humanitarian  spirit  of  recent  times  owe  it  a  deep 
debt. 

The  Age  of  the  American  Colonies  was  far  from 
looking  upon  governmental  matters  and  theories  as 
we  do  to-day.  The  idea  of  three  departments  of 
government,  so  clearly  separated  as  we  now  think 
them,  was  not  yet  accepted  as  an  axiom.  The  funda- 
mental basis,  moreover,  on  which  legislation  must  rest, 
was  looked  upon  from  a  very  different  standpoint 

30 


JUDICIARY  AND  CONSTITUTION       31 

from  that  which  we  now  occupy.  Probably,  the  Puri- 
tan, the  Quaker,  and  the  more  fundamentally  aristo- 
cratic Southern  colonists,  would  all  have  been  equally 
unable  to  comprehend  a  view  which  denies  the  neces- 
sity and  reality  of  the  distinction  between  mala  in  se 
and  mala  prohibita.  The  theocratic  or  theological  in- 
fluence of  the  times  was  enormous. 

In  some  of  the  New  England  colonies,  the  control- 
ling elements  were  for  a  time  exclusively  theologians, 
who  even  announced  that  human  laws  were  unneces- 
sary, as  the  Bible  furnished  a  complete  guide  to  human 
action.  Other  elements  of  like  beliefs  were  floating 
around,  too,  in  that  day.  The  doctrine  of  funda- 
mental principles  implanted  by  God,  which  had  been 
held  in  the  Middle  Ages,  had  not  yet  died  out,  and 
perhaps  it  was  not  for  that  matter  so  very  different 
from  the  famous  dictum  of  Coke,  about  to  be  men- 
tioned, or,  again,  from  the  views  enforced  by  our  own 
courts  to-day,  when  declining  to  carry  out  a  law  which 
they  look  upon  as  in  violation  of  great,  but  rather 
intangible,  primordial  principles  of  liberty.  These 
latter  are  now  to  some  extent  crystallized  in  the  gen- 
eral phrases  of  the  Fourteenth  Amendment. 

One  very  important  idea  of  that  time  must  be  fur- 
ther examined.  Coke's  dictum  in  Bonham's  case, — 
that  the  common  law  doth  control  Acts  of  Parliament 
and  declare  them  void,  when  against  common  right 
and  reason, — is  referred  to.  This  ruling  of  the 
mighty  common  lawyer  received  some  scattering  con- 
firmation in  a  few  early  English  cases,  and  has  even 


32  THE  RELATION  OF  THE 

found  an  endorsement  to-day,1  but  seems  to  be  en- 
tirely unmaintainable.  The  cases  which  give  the  doc- 
trine apparent  support  are  in  reality  but  ones  in  which 
the  court  did  what  any  court  will  and  ought  to  do: 
seek  to  interpret  a  statute  in  such  a  way  that  no  absurd 
or  grossly  unjust  result  shall  flow  therefrom.  One 
instance,  put  many  years  ago,  is  that  of  an  Act  or- 
daining that  the  same  person  shall  be  party  and  judge 
which  (so  the  court  said)  2  would  be  a  void  Act;  but 
not  only  do  cases  arise  in  which  a  judge  with  an 
interest  in  the  decision  must  sit  or  no  decision  can 
ever  be  had,  but  the  better  opinion  clearly  is  that  in 
that  day,  as  now,  if  Parliament  should  plainly  and 
positively  so  enact,  no  court  would  dream  of  under- 
taking to  stand  in  its  way,  and,  of  course,  any  court 
would  be  utterly  powerless,  if  the  legislative  body 
should  insist. 

Such  decisions  as  that  in  Bonham's  case  appear  to 
be  but  the  vagaries  of  an  able  man,  swept  away  by 
the  pomp  of  his  office  and  by  an  overweening  worship 
for  that  which  a  later  judge,  strangely  enough,  called 
"the  perfection  of  human  reason."  It  flies,  too,  in 
the  face  of  actual  experience ;  for  what  could  be  more 
absolutely  against  common  reason,  and  in  violation 
of  all  the  rules  of  liberty  and  justice,  than  those  acts 
of  attainder  which  occur  here  and  there  in  English 

1  "Report  of  the  Committee  on  the  Duty  of  Courts  to  Refuse 
to  Execute  Statutes  in  Contravention  of  the  Fundamental  Law/' 
presented  at  the  38th  Annual  Meeting  of  the  New  York  State 
Bar  Association,  held  at  the  City  of  Buffalo  on  the  22nd  and  23rd 
of  January,  1913,  p.  15  et  seq. 

*  City  of  London  v.  Wood,  12  Modern,  687. 


JUDICIARY  TO  THE  CONSTITUTION    33 

history  and  in  that  of  our  colonial  period?  To  enact 
that  John  Doe  shall  be  judge  in  a  case  in  which  he  is 
a  party,  is  certainly  very  unjust,  nor  can  the  violation 
be  justified,  unless  absolute  necessity  compels  it.  The 
injustice  of  such  legislation,  however,  pales  before  that 
of  an  Act  which  rudely  seizes  a  citizen  and,  without 
even  a  pretense  of  hearing  or  trial,  condemns  him, — 
often  on  common  rumor, — to  be  drawn  and  quartered, 
to  have  all  his  possessions  forfeited,  and  to  suffer  that 
corruption  of  blood  which  falls  mainly  on  his  inno- 
cent offspring.  While  these  instances  of  attainders 
stare  us  in  the  face,  the  doctrine  of  Bonham's  case 
must  surely  be  classed  as  a  vagary,  or  else  it  must 
be  regarded  simply  as  a  judicial  instance  of  juggling 
words,  so  as  to  avoid  a  very  unjust  result,  which  the 
judge  is  convinced  was  not  in  reality  intended  by  the 
legislative  authority. 

But  again  here,  as  has  not  infrequently  been  seen 
in  human  history,  this  particular  doctrine,  though  quite 
false  in  essence,  has  had  no  little  influence.  Our 
colonial  lawyers  seem  to  have  believed  in  it,  and  it  \ 
fitted  in  well  with  the  Middle  Ages'  idea  of  funda- 
mental principles  implanted  by  God,  and,  again,  in 
the  fertile  soil  of  "Man  in  a  State  of  Nature." 
Probably,  also,  the  ultra-theological  view  of  public 
affairs  tended  to  its  acceptance.  At  a  very  early  date 
in  our  history  it  was  widely  admitted  in  at  least  part 
of  the  country. 

In  the  controversy  of  Massachusetts  with  the  other 
Confederate  Colonies  of  New  England  in  1653  upon  the 


34  THE  RELATION  OF  THE 

right  of  the  Confederation  to  make  offensive  war,  all 
parties  agreed  that  any  acts  or  orders  manifestly  unjust 
or  against  the  law  of  God  were  not  binding.  ...  In 
1688  "the  men  of  Massachusetts  did  much  quote  Lord 
Coke.8" 

We  shall  find,  too,  resort  to  it  made  by  our  public 
men  in  some  few  instances  preceding  the  Revolution, 
where  some  law  very  obnoxious  to  the  principles  of 
liberty  was  under  argument  in  the  colonial  courts, 
and,  again,  against  the  Stamp  Act. 

The  history  of  our  colonial  period  has  not  yet  been 
sufficiently  studied  for  one  to  know  positively  whether 
in  those  days  the  courts  in  this  country  rendered  occa- 
sional decisions  approaching  our  modern  ones  on  the 
branch  of  constitutional  law  with  which  this  book  is 
concerned.  A  vast  deal  of  turning  over  of  dusty 
records  must  yet  be  done  before  this  point  can  be 
settled.  Some  writers  think  the  evidence  is  that 
there  were  such,  and  cite  certain  colonial  cases  as  in 
point,  and  vague  gropings  in  the  general  direction  are 
certainly  to  be  found  in  these,  while  some  rather 
closer  approaches  have  been  apparently  brought  to 
light  by  the  recent  investigators  of  the  records  of  the 
English  Board  of  Trade;  but  neither  of  these  classes 
furnishes,  in  my  opinion,  any  substantial  support  to 
the  American  Doctrine.     It  is  noteworthy,  too,  in  this 

'Article  on  "Writs  of  Assistance,"  printed  in  Quincy's  Reports 
(said  in  the  Preface  of  1864  to  be  by  Horace  Gray,  Jr.,  of  the 
Boston  bar,  later  a  Justice  of  the  Supreme  Court  of  the  United 
States),  Appendix  I,  p.  527,  footnote.  Lambert  MS.  quoted  in 
Bancroft's  "History,"  Vol.  II,  p.  428,  is  cited  as  authority  for 
the  matter  in  sub-quotations  at  the  end  of  my  quotation. 


JUDICIARY  TO  THE  CONSTITUTION    35 

connection  that,  when  the  system  in  question  was 
being  forged  into  shape  (at  and  about  1787),  no  hint 
reaches  us  of  a  knowledge  among  the  public  men  of 
the  day  as  to  decisions  of  this  character  having  been 
rendered  by  colonial  courts. 

It  is  not  altogether  easy  to  understand  how  they 
could  have  been  avoided  at  times  under,  for  instance, 
the  British  statute  providing  specifically  that  colonial 
laws  or  customs  repugnant  to  any  Act  of  Parliament 
having  relation  to  the  colonies,  should  be  null  and 
void,4  and  it  may  yet  possibly  turn  out  that  instances 
of  the  kind  or  very  close  to  it,  did  occur  in  this  con- 
nection. It  will  shortly  be  shown  that  the  nearest 
known  approach  seems  to  be  in  a  case  of  this  char- 
acter, where  the  colonial  courts  had  before  them  two 
conflicting  laws  in  relation  to  the  same  subject,  and 
thus  were  apparently  almost  forced  to  decide  whether 
to  carry  out  the  law  of  the  colonial  legislature  or  the 
specific  and  differing  provision  of  an  Act  of  Parlia- 
ment in  regard  to  the  value  of  coins. 

Probably  one  reason  for  the  absence  of  such  deci- 
sions in  general  is  to  be  found  in  the  fact  that  by 
the  date  when  the  colonies  came  to  have  any  real  im- 
portance, our  stiff-necked  colonial  ancestors  had,  in 
the  main,  succeeded  in  securing  the  control  of  their 
own  affairs.  It  is  true  that  in  some  colonies  the 
judges  were  actually  named  by  the  Crown,  but  this 
was  by  no  means  always  the  case;  and  even  in  such 

4  "The  American  Doctrine  of  Judicial  Supremacy,"  by  Charles 
Grove  Haines,  p.  65,  citing  "Statutes  of  the  Realm,"  Vol.  VII, 
p.  105  (1696). 


36  THE  RELATION  OF  THE 

(instances  the  nominees  were  likely  to  be  citizens  of 
the  colony  itself. 
There  was  one  other  vital  matter  in  the  connection : 
The  lower  houses  in  the  legislatures  held  the  purse- 
strings  for  the  judges,  as  well  as  for  other  officers, 
and  this  has  always  been  a  potent  influence  with  the 
sons  of  men.  This  result  was  the  culmination  of  a 
long  struggle  in  which  the  Governors  and  the  Crown 
appointing  them  had  sought  to  drive  the  legislatures 
to  provide  permanent  salaries,  but  with  no  measure 
of  success.  The  lower  houses  stood  out  against  any 
such  plan,  with  a  most  dogged  persistence;  and  long 
succeeded,  too,  in  making  the  commissions  of  the 
judges  read  "during  good  behavior,"  instead  of  "dur- 
ing pleasure,"  as  the  Crown  wanted.  They  were,  it 
is  true,  in  the  end  defeated  as  to  this  latter  point, 
but  they  had  their  own  Treasurer,  by  whose  hands 
salaries  were  paid;  and  these  salaries  were  subject  to 
frequent  regulation  by  the  legislature. 

And  the  "legislature"  meant  the  popular  branch. 
By  1765,  so  we  are  told,  the  Councils  had  been  robbed 
of  their  chief  legislative  powers,  and 

Judges  and  other  officers  had  become  dependent  upon 
the  lower  house.  .  .  .  There  is  but  little  doubt  that  the 
power  of  the  Assembly  to  fix  salaries  rendered  all  the 
judges  practically  dependent  upon  that  body,  except  in 
the  few  instances  in  which  they  received  their  salaries 
from  the  crown.  In  New  York  the  salaries  were  varied 
from  time  to  time,  and  in  one  case  apparently  for  the 


JUDICIARY  TO  THE  CONSTITUTION    37 

purpose  of  showing  disapproval  of  a  decision  of  the  Su- 
preme Court.5 

The  judges  thus  came  to  be  dependent  in  a  vital 
matter  on  the  colonial  authorities,  and  would  probably 
have  been  slow  to  decide  that  laws  passed  by  their 
actual  master  were  void  because  of  being  in  viola- 
tion of  some  law,  or  charter,  which  owed  its  force 
to  a  power  on  the  other  side  of  tempestuous  seas, 
three  thousand  miles  away, — a  distance  in  modern 
times  of  five  days  or  little  more,  but  then  of  long, 
long  months,  or  even  of  years.  But  this  is  thrown 
out  merely  as  a  suggestion  or  guess  as  to  the  reason 
for  the  entire  absence  of  a  line  of  decisions  of  which 
we  should  expect  at  least  to  find  instances,  and  which 
the  student  of  days  to  come  may  yet  learn  did  exist. 

Let  us  now  examine  the  few  cases,  or  hints  that 
have  come  down  to  us  across  the  centuries ;  and,  in 
the  first  place,  it  will  be  best  to  consider  such  as  are 
preserved  in  our  own  records. 

One  very  early  case  in  a  colonial  court  does  grope 
around  the  general  subject,   and  uses  language  not 

8  Dickerson's  "Colonial  Government,"  pp.  n  and  195,  and  see 
generally  160-207.  "Introduction"  to  Geo.  Chalmers's  "History  of 
the  Revolt  of  the  American  Colonies,"  Vol.  II,  pp.  52-56,  is  to 
the  same  effect.  He  writes  that  -between  about  1720  and  1730 
the  New  York  Assembly  seized  all  powers,  made  every  officer 
dependent  on  them,  and  cut  the  Chief  Justice's  salary  from  300  to 
250  pounds  a  year,  "pretending  that  they  did  not  object  to  his 
administration,  but  that  the  colony,  now  less  wealthy  than  for- 
merly, was  unable  to  maintain  so  great  an  establishment."  They 
also,  Chalmers  adds,  weakened  the  supreme  court  of  common 
law,  and  then  proceeded  to  overturn  the  chancery  courts,  re- 
solving that  they  had  "been  established  by  incompetent  powers." 


38  THE  RELATION  OF  THE 

entirely  dissimilar  from  that  to  be  found  in  judicial 
rulings  of  to-day;  but  it  is,  in  my  opinion,  far  from 
being  in  point,  or  a  decision  of  the  question  in  the 
judicial  sense.  Giddings  v.  Brown  is  referred  to, — a 
case  that  was  decided  by  Magistrate  Symonds  in 
Massachusetts  in  1657.  It  is  far  from  clear,  like 
many  another  case;  however,  one  point  plain  enough  is 
that  the  enactment  attacked  was  not  at  all  a  statute 
passed  by  the  Legislature  but  a  mere  ordinance  of  the 
town  authorities  of  Ipswich.  They  had  levied  a  sum 
on  the  inhabitants  to  buy  or  build  a  house  for  a  new 
parson.  This  was  resisted  by  Giddings,  and  Symonds 
held  that  he  could  not  be  forced  to  pay. 

The  idea  which  Symonds  seems  to  have  acted  on 
was  that  Giddings'  property  was  simply  being  taken 
from  him  and  handed  over  to  another.  This,  he  said, 
could  not  be  done  even  by  Parliament,  though  it  may 
tax  the  whole  country,  but  "it  is  against  a  fundamental 
law  in  nature  to  be  compelled  to  pay  that  which  others 
do  give."  Even  in  England,  he  adds,  citing  Finch, 
a  law  which  is  "repugnant  to  fundamentall  law"  is 
void;  and  he  cites  similar  colonial  decisions  made  by 
a  town  (not  by  a  court)  in  regard  to  such  questions, 
for  instance,  as  a  levy  to  bring  in  a  surgeon  to  reside 
in  the  town.  Symonds's  decision  was  later  reversed 
in  the  General  Court,  and  the  levy  held  valid.6 

9  Giddings  v.  Brown,  cited  in  "The  English  Common  Law  in 
the  American  Colonies,"  by  Paul  Samuel  Reinsch,  in  "Select 
Essays  in  Anglo-American  History,"  Vol.  I,  pp.  376,  377.  Mr. 
Reinsch  refers  for  a  full  report  of  the  case  to  the  "Hutchinson 
Papers,"  Vol.  II,  p.  1  et  seq.,  whence  my  account  is  of  course 
taken. 


JUDICIARY  TO  THE  CONSTITUTION    39 

A  footnote  to  the  case  suggests  that  the  real  ques- 
tion at  issue  was  whether  an  act  of  the  supreme  au- 
thority empowering  the  majority  of  the  inhabitants 
of  a  town  to  tax  a  non-consenting  minority 
was  or  was  not  contrary  to  the  fundamental 
laws  of  government.  If  the  legislative  authority 
had  formally  authorized  the  towns  to  do  this, 
the  case  would  technically  be  far  more  nearly  in 
point;  for  then  the  town  ordinance  would  be  in- 
directly the  act  of  the  supreme  power  itself.  How- 
ever, the  long  and  rambling  report  fails  to  show  this 
fact,  and  the  judge  certainly  acted  upon  no  such 
theory,  but  upon  the  conviction  that  the  ordinance  was 
contrary  to  natural  justice.  In  other  words,  he  ap- 
plied that  later  favorite  of  the  colonists:  Coke's  doc- 
trine that  statutes  against  common  right  and  reason 
are  void.  There  was  at  the  time  a  controversy  in  the 
colony  whether  spiritual  guides  should  be  entirely  de- 
pendent on  voluntary  contributions,  or  whether  an 
objecting  minority  should  be  forced  equally  to  pay. 
In  the  following  century,  a  Massachusetts  law  of  1722, 
levying  a  tax  on  Quaker  towns  for  the  support  of 
Congregational  ministers,  was  of  course  not  set  aside 
in  Massachusetts,  but  it  was  disallowed  by  the  King 
in  Council.7 

7  Dickerson's  "Colonial  Government,"  pp.  267-269.  See,  how- 
ever (infra,  pp.  42,  43),  the  opinion  of  Yorke  and  Talbot  in  1732 
in  relation  to  a  like  tax  complained  of  by  some  members  of  the 
English  church,  who  had  been  sent  out  to  America.  "Historical 
Collections  of  the  American  Colonial  Church,"  by  Wm.  Stevens 
Perry,  Vol.  Ill,  Massachusetts,  pp.  274-288,  or  "Statutes  at  Large 
of  Pennsylvania,"  Vol.  V,  pp.  735-737-  I  am  indebted  for  this 
reference  and  for  other  aid  in  this  general  matter,  to  Prof.  Elmer 
Beecher  Russell. 


40  THE  RELATION  OF  THE 

The  well-known  case  of  Frost  v.  Leighton 8  has 
also  been  thought  to  be  in  point,  but  does  not  seem 
to  be  so  in  reality.  It  is  true  that  in  this  instance 
the  Superior  Court  of  Judicature  of  Massachusetts 
Bay  declined  to  enforce  an  order  issued  by  the  King 
in  Council,  alleging  as  its  reason  that  "the  powers 
of  the  court  derived  through  the  charter  and  the  laws 
passed  to  carry  the  same  into  effect,  were  in  the 
judgment  of  the  court  inadequate  for  that  purpose/' 
\  But  in  reality,  in  so  far  as  this  action  is  not  to  be 
classed  as  bold  defiance,  the  language  was  merely  a 
subterfuge,  and  at  other  stages  of  the  litigation,  the 
Massachusetts  court  simply  declined  to  carry  out  Eng- 
lish decrees  in  the  case  on  what  have  been  deservedly 
\  called  "disingenuous"  grounds.  At  one  time  they 
complimented  counsel  on  his  suggestion  of  certain 
very  technical  reasons,  which  had  "relieved  them  from 
their  embarrassment.9" 

The  truth  is  that  the  case  was  but  one  in  a  long 
struggle  by  the  colonial  authorities  to  prevent  appeals 
to  the  Privy  Council,  or  to  rob  them  of  all  effect.  In 
the  particular  instance,  the  authorities  in  the  new 
country  wriggled  and  twisted  in  every  way,  first  in 
order  to  prevent  any  appeal  to  the  Privy  Council,  and, 
when  that  effort  failed,  to  prevent  the  decree, — or 
rather  the  decrees,  for  there  were  several  of  them, — 
from  having  the  least  effect. 

They  were  indeed  a  bold  and  self-assertive  people, 
already  far  along  on  the  high  road  to  independence, 

8  "The  Case  of  Frost  v.  Leighton,"  by  Andrew  McF.  Davis  in 
American  Hist.  Review,  Vol.  II   (Jany.,  1897),  PP-  229-240. 

9  Ibid.,  pp.  234,  238. 


JUDICIARY  TO  THE  CONSTITUTION    41 


and  we  are  told  that  about  the  last  step  in  this  lengthy 
controversy  was  that,  when  the  Governor  sent  two 
orders  of  the  Privy  Council  to  the  court,  complaining 
that  nothing  had  yet  been  done  in  the  matter,  though 
the  legal  form  of  issuing  a  summons  to  show  cause 
was  gone  through  with, — "it  is  doubtful  whether  even] 
this  perfunctory  recognition  of  the  governor's  com- 
plaint was  actually  performed."  The  litigation  had 
then  been  pending,  and  all  the  efforts  of  the  home 
authorities  successfully  resisted  for  seven  years,10  nor 
need  we  wonder  that  the  Secretary  of  the  Board  of 
Trade  was  informed  at  much  the  same  time,  from 
another  colony,  that  this  latter  possession  was  aiming 
at  "nothing  less  than  being  independent  of  the  king- 
dom of  Great  Britain,  as  fast  as  they  can.11 

One  other  possible  indication  must  be  mentioned 
here,  though  it  is  far  too  vague  to  rely  upon  in  a 
matter  of  history.  In  New  York  in  1691,  after  the 
end  of  Leisler's  rebellion,  the  Assembly  alone  under- 
took to  enact  that  many  theretofore  undoubted  laws 
of  the  province  were  "null  void  and  of  none  effect/' 
and  this  extraordinary  resolution  was  not  even  pre- 
sented to  the  Governor  and  Council  for  their  concur- 
rence.12 Such  were  now  and  then  the  incomprehen- 
sible methods  of  our  ancestors  in  colonial  days,  and 
surely  this  instance  bears  out  what  has  been  said  in 

10  Schlesinger's  "Appeals  to  the  Privy  Council,"  "Political  Sci- 
ence Quarterly,"  Vol.  XXVIII,  pp.  434-437. 

11  "Introduction"  to  "History  of  the  Revolt  of  the  American 
Colonies,"  by  Geo.  Chalmers,  Vol.  II,  pp.  55-56. 

"John  R.  Brodhead's  "History  of   New  York,"  Vol.   II,  pp. 
643,  644. 


42 


THE  RELATION  OF  THE 


j 


\ 


yt. 


these  pages,  that  they  needed  a  guiding  and  helping 
hand.  It  was  to  this  resolution  that  Gov.  Cadwallader 
Colden  had  reference,  when  he  wrote  in  1759: 

By  the  first  Act  or  Resolve  of  the  first  Assembly  after 
the  Revolution,  a  power  is  assumed  of  repealing  Laws 
without  the  concurrence  of  the  other  branches  of  the 
Legislature,  or  a  Judicial  power  of  declaring  them  void. 
A  Power  which  in  no  wise  belonged  to  them :  and  which, 
if  countenanced,  may  be  highly  prejudicial  both  to  the 
Crown  and  the  Subject;  and  yet  this  usurped  power  has, 
in  this  instance,  taken  effect  ever  since.18 

I  have  placed  in  italics  the  words  in  Colden's  letter, 
which  seem  so  indicative,  and  it  is  certainly  not  easy 
to  understand  how  he  came,  in  referring  to  laws  of 
the  Legislature,  to  speak  of  "a  Judicial  power  of  de- 
claring them  void,"  unless  the  colonial  courts  had  in 
that  instance  exercised  the  power  referred  to,  or,  at 
least,  unless  some  such  power  in  the  Judiciary  was 
talked  of  among  the  men  of  the  time. 

It  remains  to  consider  the  instances  which  have  been 
so  recently  discovered  in  the  records  of  the  Board  of 
Trade  in  England.  But  it  should  be  said,  in  the  first 
place,  that  it  is  clear  that  the  English  lawyers, — and 
hence,  presumably,  the  American  lawyers  also, — well 
knew  the  system  by  which  colonial  laws  were  occa- 
sionally held  unauthorized  and  void  by  the  English 
courts,  as  well  as  by  the  King  in  Council.  Thus, 
Yorke  and  Talbot,  in  an  opinion  of  1732,  upon  the 
complaint  of  members  of  the  English  Church,  as  to 

""New  York  Historical  Society  Collections,"  1869,  pp.  203-211. 


JUDICIARY  TO  THE  CONSTITUTION    43 

whether  Massachusetts  laws  authorizing  a  levy  on 
all  inhabitants  for  the  support  of  the  Congregational 
Church  were  void,  wrote  that  the  laws  could  not  then 
be  disallowed  by  the  Crown,  adding,  however: 

If  they  were  really  void  in  themselves  on  this  ac- 
count, yet  no  Extrajudicial  Declaration  that  they  are  so 
would  be  conclusive,  but  the  only  Method  of  bringing 
that  matter  to  a  Determination  would  be  by  some  Ju- 
dicial Proceeding.14 

Similarly,  Pratt  and  Yorke  wrote  in  an  opinion  of 
1750  that,  though  in  general  an  act  must  be  approved 
or  disallowed  by  the  Crown  as  a  whole,  yet  particular 
provisions  in  violation  of  an  Act  of  Parliament  may 
be  void  ab  initio,  and  added: 

These  are  cases  the  decision  of  which  does  not  depend 
on  the  exercise  of  a  discretionary  prerogative,  but  may 
arise  judicially  and  must  be  determined  by  general  rules 
and  the  constitution  of  England.  And  upon  this  ground 
it  is  that  in  some  instances  whole  acts  of  assembly  have 
been  declared  void  in  the  courts  of  Westminster  Hall, 
and  by  his  Majesty  in  council  upon  appeals  from  the 
plantations.16 

One  record  has  been  brought  to  light,  showing  that 

at  least  one  judge  in  this  country  had  some  idea  of 

the  matter  in  1742,  and  was  in  doubt  what  a  court 

ought  to  do,  when  a  colonial  statute  repugnant  to 

""Historical   Collections  of   the   American   Colonial   Church," 
by  Wm.  Stevens  Perry,  Vol.  Ill,  Massachusetts,  pp.  274-288. 
16  "Statutes  at  Large  of  Pennsylvania,"  Vol.  V,  pp.  735-737- 


44  THE  RELATION  OF  THE 

the  laws  of  England  was  an  essential  element  in  some 
case  before  it.  Chief  Justice  Whitaker,  of  South 
Carolina,  sent  a  representation  to  the  Board  of  Trade 
in  that  year,  in  which  he  wrote  at  some  length  of 
the  courts  of  law,  and  then  went  on  substantially  as 
follows : 

Sometimes  acts  have  been  made  in  the  Parliament  not 
only  contrary  to  the  King's  instruction  and  prerogative, 
but  repugnant  to  the  laws  of  England.  Are  these  laws 
void  from  the  beginning  or  only  voidable  by  his  Maj- 
esty's disallowance?  What  are  judges  to  do  when  they 
are  pleaded  in  evidence?16  Is  repugnance  to  the  laws 
of  England  to  be  understood  of  the  Common  or  Statute 
law  or  of  the  Common  Law  as  altered,  explained  or  en- 
larged by  Statutes,  and  what  obligation  has  the  statute 
law  of  England  in  the  Plantations?  .  .  .  Can  Acts  of 
Assembly  which  have  been  confirmed  by  the  Crown  be 
repealed  or  altered  by  subsequent  acts  before  such  sub- 
sequent acts  have  been  confirmed  by  the  Crown  ? 17 

One  other  indication  of  the  feeling  on  this  general 
subject  in  South  Carolina  has  been  preserved,  and  is 

16  Italics  mine. 

17  For  this  instance,  which  seems  to  me  to  show  pretty  plainly 
that  such  questions  must  have  presented  themselves  at  times  to 
inquiring  minds,  I  am  entirely  indebted  to  Prof.  Elmer  Beecher 
Russell.  Upon  my  inquiring  whether  his  notes  made  in  England 
contained  anything  further  upon  the  general  subject  of  the  action 
of  colonial  courts  than  is  mentioned  in  his  "Review  of  American 
Colonial  Legislation,"  and  especially  at  the  end  of  footnote  3 
in  ibid.,  p.  137,  he  kindly  sent  me  this  and  a  number  of  other 
memoranda  he  had  made.  My  quotations  are  from  his  letter  to 
me,  which  contains  his  notes  as  made  abroad  from  the  English 
records,  but  these  (he  writes  me)  are  not  verbatim  copies  but 
his  summation.  The  reference  to  the  Board  of  Trade  records 
for  this  instance  is  C  0/5 — 369-118  and  370 — H34.    26  Jan.,  1742. 


JUDICIARY  TO  THE  CONSTITUTION    45 

strikingly  similar  to  that  just  cited.  In  1768  the  au- 
thor of  an  article  on  representation  and  the  power 
of  their  assembly  in  the  matter,  writing  at  a  time  when 
the  assembly  had  undertaken  to  reduce  the  representa- 
tion in  some  parishes,  argued  that  the  right  of  repre- 
sentation rested  on  the  English  constitution,  could 
only  be  granted  by  the  King,  and  could  never  be  re- 
voked.    Continuing,  he  said : 

Being  a  part  of  the  constitution,  the  Assembly  had  no 
power  over  it.  In  the  writer's  own  words,  "the  consti- 
tution is  as  much  above  the  reach  of  an  act  of  assem- 
bly as  Mt.  Ossa  is  to  a  molehill."  18 

In  addition  to  these  hints,  from  Chief  Justice 
Whitaker  and  the  unknown  writer  in  South  Carolina 
just  cited,  one  actual  instance  has  been  found  in  the 
Board  of  Trade  records,  in  which  it  seems  fairly 
clear  that  in  a  case  of  the  nature  put  by  Whitaker  of 
South  Carolina,  the  courts  of  Massachusetts  and  of 
New  Hampshire  about  171 1  carried  out  an  Act  of 
Parliament  in  preference  to  a  differing  prior  law  of 
their  own  province  in  the  same  matter,  which  had  been 
perfectly  valid  before  the  Act  of  Parliament,  and  had 
not  been  formally  repealed. 

This  instance  arose  in  the   following  way:     The 

colonies  had  long  been  in  the  habit  of  passing  laws  to 

regulate  the  value  of  foreign  coins,  with  the  aim  of 

18  Wm.  A.  Schaper's  "Representation  and  Sectionalism  in  South 
Carolina,"  in  "Annual  Report  of  American  Historical  Associa- 
tion," 1900,  Vol.  I,  pp.  230  et  seq.  See  especially  p.  347.  There 
had  been  repeated  efforts  by  the  Assembly  to  alter  the  represen- 
tation, and  several  such  laws  had  been  disallowed. 


46  THE  RELATION  OF  THE 

securing  a  circulating  medium,  but  the  Crown  had 
always  disallowed  these,  and  finally  issued  a  proclama- 
tion specifically  regulating  the  coin  values  in  the  colo- 
nies, and  not  long  thereafter  an  Act  of  Parliament  to 
the  same  effect  was  passed.  This  was  the  end  of  the 
matter,  as  there  was  already  a  general  Act 19  upon 
the  statute-book,  providing  specifically  that  colonial 
laws,  or  customs,  repugnant  to  any  Act  of  Parliament 
having  relation  to  the  colonies  should  be  null  and  void. 
In  1697,  Massachusetts  had  passed  an  act  to  regulate 
the  values  of  foreign  coins,  and  this  had  been  confirmed 
by  the  Crown  in  council.  Then  came  the  King's 
proclamation  of  1702;  but  the  Attorney-General  of 
England  gave  it  as  his  opinion  that  the  confirmed 
colonial  law  was  still  of  effect,  despite  the  royal 
proclamation.  Still  another  question  arose,  however, 
after  the  passage  of  the  Act  of  Parliament  of  1704 
regulating  the  values,  because  of  the  general  statute 
providing  for  the  nullity  of  provincial  laws  differing 
from  one  enacted  by  Parliament. 

How  was  this  nullity  to  be  ascertained  and  declared  ? 
If  the  colonial  courts  were  to  settle  the  question  by 
examining  and  weighing  the  two  opposing  legislative 
acts, — of  their  Legislature  and  of  Parliament, — to 
find  out  which  was  the  fundamental  and  superior,  and 
then  to  enter  a  decree  based  on  the  conclusion  that 
fl  one  or  the  other  was  unauthorized  and  void,  their 
decisions  would  come  very  close  to  the  American  Doc- 
trine, and  we  are  told  in  this  instance,  on  the  evidence 

19  Haines's  "American  Doctrine/'  p.  65,  citing  "Statutes  of  the 
Realm,"  Vol.  VII,  p.  105   (1696). 


JUDICIARY  TO  THE  CONSTITUTION    47 

of  a  letter  to  the  Board  of  Trade  from  the  Governor 
of  Massachusetts,  preserved  in  the  British  records, 
that 

After  the  passing  of  the  Act  of  Parliament,  the  provin- 
cial courts,  at  least,  appear  to  have  followed  the  values 
prescribed  therein.20 

It  is  impossible  to-day  to  go  further  into  this  ques- 
tion, and  it  must  be  left  to  the  future  to  follow  out 
the  indication,  in  order  to  learn  whether  or  not  the 


NOTE 


To  Be  Inserted  at  Page  47  of  Meigs'  "The  Relation  of 
The  Judiciary  to  the  Constitution." 
Since  this  book  was  printed,  one  other  instance  in 
point  here  has  come  to  the  author's  knowledge.  In  1768, 
William  Samuel  Johnson  was  the  colonial  agent  of  Con- 
necticut in  London.  In  a  conversation  with  the  Earl  of 
Hillsborough,  then  recently  appointed  Secretary  of  State 
for  the  colonies,  Hillsborough  was  maintaining  that  the 
laws  of  Connecticut  should  all  be  sent  over  to  England 
for  disapprobation,  "if  found  *  *  *  repugnant  to  the  laws 
of  England!'  but  Johnson  denied,  under  their  charter, 
both  this  obligation  and  any  right  of  the  King's  Ministers 
or  even  of  the  Privy  Council  to  determine  such  ques- 
tion. He  insisted  that  this  function  could  only  be  exer- 
cised by  a  court  of  law  having  jurisdiction,  and  added 
"that  this  might  be  done  in  the  courts  of  law  in  the  Col- 
ony [italics  mine],  *  *  *  and  very  fairly  decided  there, 
and  have  [leave?]  no  room  for  an  application  here." 
Lawrence  H.  Gipson's  Jared  Ingersoll  (Yale  Historical 
Publications.  Miscellany  VIII),  pp.  273-275.  See  also 
Ibid.,  pp.  191,  193. 


\y 


46  THE  RELATION  OF  THE 

securing  a  circulating  medium,  but  the  Crown  had 
always  disallowed  these,  and  finally  issued  a  proclama- 
tion specifically  regulating  the  coin  values  in  the  colo- 
nies, and  not  long  thereafter  an  Act  of  Parliament  to 
the  same  effect  was  passed.  This  was  the  end  of  the 
matter,  as  there  was  already  a  general  Act 19  upon 
the  statute-book,  providing  specifically  that  colonial 
laws,  or  customs,  repugnant  to  any  Act  of  Parliament 
having  relation  to  the  colonies  should  be  null  and  void. 


JUDICIARY  TO  THE  CONSTITUTION    47 

of  a  letter  to  the  Board  of  Trade  from  the  Governor  j 
of  Massachusetts,  preserved  in  the  British  records, 
that 

After  the  passing  of  the  Act  of  Parliament,  the  provin- 
cial courts,  at  least,  appear  to  have  followed  the  values 
prescribed  therein.20 

It  is  impossible  to-day  to  go  further  into  this  ques- 
tion, and  it  must  be  left  to  the  future  to  follow  out 
the  indication,  in  order  to  learn  whether  or  not  the 
courts  of  our  colonies  did  undertake,  in  more  than 
a  very  few, — or  perhaps  even  a  single  instance, — to 
examine  the  relative  value  of  conflicting  laws  upon  the 
same  subject  passed  by  two  legislative  bodies,  and  to 
decide  in  a  proper  case  that  the  law  passed  by  their 
own  Legislature  was  void,  because  unauthorized  by 
a  more  fundamental  charter,  or  Act  of  Parliament. 

20  Russell's  "Review,"  etc.,  p.  137,  footnote  3,  citing  C  0/5 — 323, 
F,  14.  C  0/5 — 913,  p.  285;  29  January,  171 1.  In  this  case  again 
Prof.  Russell  has  very  kindly  given  me  a  more  extensive  detail 
of  what  his  notes  made  in  England  contain.  Lieut.-Gov.  Usher 
of  New  Hampshire  had  written  the  Board  of  Trade  that  the  Act 
of  Parliament  relating  to  foreign  coins  was  being  violated,  and 
then  Governor  Dudley  of  Massachusetts  wrote  them  on  No- 
vember 15,  1710,  going  into  the  history  of  the  laws.  The  colonial 
law  was  of  1697  and  prescribed  "the  former  usage"  of  17  penny- 
weight, while  the  King's  Proclamation  of  1702  fixed  17J4 
pennyweight,  and  the  Act  of  Parliament  of  1704  confirmed  this. 
Dudley  wrote  that  "Since  then  all  courts  have  given  judgment 
at  iyy2  and  the  Treasury  can  receive  no  more.  Usher  ought  to 
know  this.  It  is  true  also  of  New  Hampshire."  The  Board  in 
a  reply  to  Dudley  of  Jany.  29,  171 1  (Russell's  "Review,"  citing 
ibid.,  p.  322),  "express  themselves  as  satisfied  with  what  he 
writes  in  regard  to  coin."  The  quotation  in  my  text  is  from 
Russell's  "Review"  at  the  page  indicated,  and  those  in  this  foot- 
note are  from  his  letter  to  me,  which  contains  (as  already  said) 
not  verbatim  transcripts  from  the  records  but  his  summation  of 
what  they  contain. 


CHAPTER  III 

FUNDAMENTAL  LAW  AND  COKEYS  DOCTRINE  DURING 
REVOLUTIONARY  DAYS.  CONFLICTING  LEGISLA- 
TION OF  THE  PERIOD  AND  ITS  EFFECT  ON  PUBLIC 
OPINION 

Probably  a  people  seldom  or  never  altogether 
abandons  the  fundamental  principles  of  its  creed  in 
regard  to  governmental  affairs.  They  may,  doubt- 
less, in  the  course  of  centuries  take  up  many  new  be- 
liefs, and  in  a  time  of  stress  and  revolution  may  even 
suddenly  alter  their  principles  so  enormously  that 
these  will  be  hard  to  recognize,  but  the  old  is  pretty 
sure  to  survive  in  some  form  and  to  be  used  as  a 
constituent  element  in  the  new  edifice. 

Such  was,  I  think,  emphatically  the  case  with  our 
ancestors.  The  race  continued  to  breed  true  to  its 
stock  and  to  its  environment.  They  hardly  could 
have  shed  My  Lord  Coke's  doctrine  of  void  laws  and 
the  older  doctrine  of  fundamental  principles  implanted 
by  God;  for  here  was  a  theory  of  public  affairs  right 

It  hand,  which  had  infiltrated  itself  into  their  minds, 
nd  which  offered  an  easy  method  of  escape  from 
unauthorized  statutes.  We  shall  see  how  quickly  they 
had  resort  to  it,  under  the  swelling  of  that  spirit  of 
independence  which  reached  its  culmination  in  1776, 

48 


JUDICIARY  AND  CONSTITUTION        49 

though  it  had  long  before  been  planted  in  their  nature 
and  had  already  had  a  sturdy  growth.1  Those  active, 
thinking,  determined  men  wanted  a  justification  for 
their  actions;  they  felt  forced  to  hold  their  people 
united ;  and  the  best  defense  at  hand  was  one  that  was 
a  sort  of  birthright  of  belief. 

When,  then,  early  in  the  second  half  of  the  eigh- 
teenth century,  an  effort  was  made  in  the  higher  courts 
of  Massachusetts  to  issue  general  search-warrants,  or 
"Writs  of  Assistance,"  to  aid  the  Crown  authorities  in 
ferreting  out  smuggling,  by  means  of  house  to  house 
terrorizing,  the  old  inherited  belief  was  by  no  means 
forgotten,  and  James  Otis  based  his  argument  against 
the  writs  on  the  claim  that  they  violated  English  lib- 
erty and  "the  fundamental  principles  of  law."  Mere 
notes  of  his  speech,  written  down  by  John  Adams, 
survive,  but  these  abstract  him  in  part  as  follows: 

As  to  acts  of  Parliament.  An  Act  against  the  consti- 
tution is  void ;  an  act  against  natural  equity  is  void ;  and 
if  an  act  of  Parliament  should  be  made,  in  the  very 
words  of  this  petition,  it  would  be  void.  The  executive 
courts  must  pass  such  acts  into  disuse  [referring  to 
Viner].  .  .  .  Reason  of  the  common  law  to  control  an 
act  of  Parliment.2 

1  Hosts  of  facts  in  proof  of  this  could  easily  be  gathered,  but 
the  instance  (cited  ante,  p.  41)  of  the  Attorney-General  writing 
from  New  York  in  1728  that  the  colony  was  aiming  at  "nothing 
less  than  being  independent  of  the  kingdom  of  Great  Britain, 
as  fast  as  they  can,"  is  enough  here. 

2  John  Adams's  "Works,"  Vol.  II,  pp.  124-125,  and  Appendix, 
pp.  521-525.  See  also  Quincy's  (Mass.)  Reports,  Appendix  I, 
PP-  395-540*  for  article  by  the  late  Justice  Gray. 


/ 


50  THE  RELATION  OF  THE 

And  in  a  pamphlet3  of  a  few  years  later  (1764), 
Otis  wrote : 

If  the  reasons  that  can  be  given  against  an  act  are  such 
as  plainly  demonstrate  that  it  is  against  natural  equity, 
the  executive  courts  will  adjudge  such  act  void.  It  may 
be  questioned  by  some,  though  I  make  no  doubt  of  it, 
whether  they  are  not  obliged  by  their  oaths  to  adjudge 
such  act  void.  ...  To  say  the  parliament  is  absolute 
and  arbitrary,  is  a  contradiction.  .  .  .  The  supreme 
power  in  a  state  is  jus  dicere  only;  jus  dare,  strictly 
speaking,  belongs  alone  to  God.  Should  an  act  of  parlia- 
ment be  against  any  of  his  natural  laws,  which  are  im- 
mutably true,  their  declaration  would  be  contrary  to 
eternal  truth,  equity  and  justice  and  consequently  void: 
and  so  it  would  be  adjudged  by  the  parliament  itself, 
when  convinced  of  their  mistake.  Upon  this  great  prin- 
ciple, parliaments  repeal  such  acts,  as  soon  as  they  find 
they  have  been  mistaken.  .  .  .  When  such  mistake  is 
evident  and  palpable  .  .  .  the  judges  of  the  executive 
courts  have  declared  the  act  "of  a  whole  parliament  void." 

Far  off  to  the  South,  too,  about  a  decade  later 
(1772),  the  same  argument  was  advanced  by  George 
Mason,  as  against  a  law  of  Virginia  of  1682  for  the 
sale  of  the  descendants  of  Indian  women  as  slaves. 
The  statute,  he  contended, 

was  originally  void  in  itself,  because  it  was  contrary  to 
natural  right.  .  .  Now  all  acts  of  legislature  apparently 
contrary  to  natural  right  and  justice,  are,  in  our  laws, 

'"Rights  of  the  British  Colonies  Asserted  and  Proved,"  pp. 
4i,  47- 


JUDICIARY  TO  THE  CONSTITUTION    51 

and  must  be  in  the  nature  of  things,  considered  as  void. 
The  laws  of  nature  are  the  laws  of  God;  whose  author- 
ity can  be  superseded  by  no  power  on  earth.  A  legis- 
lature must  not  obstruct  our  obedience  to  him  from 
whose  punishments  they  cannot  protect  us.  All  human 
constitutions  which  contradict  his  laws,  we  are  in  con- 
science bound  to  disobey. 

Bland,  on  the  other  side,  did  not  apparently  dispute 
these  arguments,  but  maintained  that  the  system  of 
degrees  or  grades  in  society  was  conformable  to  the 
general  scheme  of  the  Creator,  and  that  the  position 
of  slaves  must  be  filled  by  some.  The  decree  of  the 
court  was  that  the  Act  of  1682  had  been  repealed  by 
an  Act  of  1705.4 

When,  at  length,  the  Stamp  Act  was  passed,  and 
the  colonies  burst  out  in  flames  of  almost  revolution, 
the  leaders  of  the  movement  eagerly  wanted  to  save 
their  people  from  absolute  control  by  a  nation  at  three 
thousand  miles'  distance,  and  at  the  same  time  they 
wanted  a  basis  of  reason  to  show  the  legality  of  their 
course.  It  was  not  altogether  easy  then, — far  less  so 
than  it  seems  to  us  to-day,  one  hundred  and  fifty  years 
later, — to  find  this,  and  they  groped  about  a  good  deal 
for  a  time  in  rather  a  vague  way.  The  beginnings  of 
all  principles  are  vague  and  groping,  and  it  does  not 
argue  against  the  soundness  of  our  American  Doctrine 
of  Judicial  Power  that  it  was  slowly  led  up  to  by  halt- 
ing and  uncertain  steps,  by  some  backing  and  filling, 
by  the  assertion  of  alleged  principles  which  will  not 
bear  scrutiny. 

*  Robin  v.  Hardaway,  Jefferson's  (Virginia)  Reports,  p.  109. 


52  THE  RELATION  OF  THE 

The  Courts  in  Massachusetts  were  closed  after  the 
passage  of  the  Stamp  Act,  because  of  its  requirement 
that  only  stamped  paper  should  be  used,  and  because 
there  were  no  stamps  in  the  colony.  In  this  state 
of  circumstances,  Boston  adopted  a  petition  to  the 
governor  and  council  to  open  the  courts,  despite  this 
defect,  and  the  young  John  Adams  found  himself  sud- 
denly appointed  one  of  the  counsel  to  present  the 
petition.  It  was  a  responsible  position  for  a  man  of 
thirty  to  fill,  and  Adams  was  evidently  in  much  doubt 
as  to  the  best  line  of  argument  to  adopt.  To  quote 
from  his  "Diary" : 

Shall  we  contend  that  the  Stamp  Act  is  void, — that  the 
Parliament  have  no  authority  to  impose  internal  taxes 
upon  us,  because  we  are  not  represented  in  it, — and  there- 
fore that  the  Stamp  Act  ought  to  be  waived  by  the  judges 
as  against  natural  equity  and  the  constitution?  Shall 
we  use  these  as  arguments  for  opening  the  courts  of  law? 
Or  shall  we  ground  ourselves  on  necessity  only?5 

He  was  still  a  little  drifting,  too,  at  the  argument, 
for  the  same  "Diary"  6  has  it  that  he  based  himself  on 
such  contentions  as  that  "the  act  of  law  never  doth 
wrong,"  "An  Act  of  Parliament  can  do  no  wrong"; 
though  he  did  advance  the  doctrine  of  Coke,  and  argue 
specifically  that  "Acts  of  Parliament  against  reason 
or  impossible  to  be  performed,  shall  be  judged  void." 
A  more  inspiring  outline  of  his  address,  but  quite  con- 

8  John  Adams's  "Life  and  Works,"  Vol.  I,  pp.  76,  77. 
'Ibid.,  Vol.  II,  pp.  157  et  seq. 


JUDICIARY  TO  THE  CONSTITUTION    53 

sistent  with  the  foregoing,  is  to  be  found  in  another 
place.     Here  he  is  represented  to  have  spoken  thus  :7 

The  Stamp  Act,  I  take  it,  is  utterly  void,  and  of  no 
binding  force  upon  us;  for  it  is  against  our  rights  as 
Men  and  our  Privileges  as  Englishmen.  An  Act  made 
in  defiance  of  the  first  Principles  of  Justice,  an  Act  which 
rips  up  the  Foundation  of  the  British  Constitution  and 
makes  void  Maxims  of  eighteen  hundred  Years'  stand- 
ing. 

Parliament  may  err;  they  are  not  infallible;  they  have 
been  refused  to  be  submitted  to.  An  Act  making  the 
King's  Proclamation  to  be  law,  the  Executive  Power 
adjudged  absolutely  void. 

The  Stamp  Act  was  made  where  we  are  in  no  sense 
represented,  therefore  no  more  binding  upon  us,  than  an 
Act  which  should  oblige  us  to  destroy  One-half  of  our 
species. 

There  are  certain  Principles  fixed  unalterably  in  Na- 
ture. 

If  there  was  early  mist,  and  if  counsel  groped  in 
the  preparation  of  the  case  and  even  in  its  argument, 
much  of  this  was  cleared  away  by  the  glare  of  argu- 
ment, and, — with  even  a  remarkable  approach  to  our 
modern  viewpoint, — the  Governor  said,  after  the  dis- 
cussion was  over: 

The  arguments  made  use  of,  both  by  Mr.  Adams  and 
you  [Otis]  would  be  very  pertinent  to  induce  the  Judges 

'Andrew  C.  McLaughlin's  "The  Courts,  the  Constitution  and 
the  People,"  p.  80,  citing  Justice  Gray's  article  in  Quincy's 
(Mass.)    Reports,  pp.  200,  201. 


y 


54  THE  RELATION  OF  THE 

of  the  Superior  Court  to  think  the  Act  of  no  validity, 
and  that  therefore  they  should  pay  no  Regard  to  it;  but 
the  Question  with  me  is  whether  that  very  Thing  don't 
argue  the  Impropriety  of  our  Intermeddling  in  a  Matter 
which  solely  belongs  to  them  to  judge  of  in  their  Judicial 
Department.8 

Again,  in  the  matter  of  the  Stamp  Act,  proceedings 
of  a  similar  nature  to  those  in  Massachusetts  occurred 
in  Virginia.  In  the  Court  of  Hustings  for  Northamp- 
ton County,  so  the  original  minutes  of  the  Court  still 
record,  on  February  II,  1766,  the  Clerk  and  other 
Officers  came  in  and  prayed  the  opinion  of  the  Court 
whether  the  Stamp  Act 

was  binding  on  the  inhabitants  of  this  Colony,  and 
whether  they  the  said  Officers  should  incur  any  Penal- 
ties by  not  using  Stamp  Paper  agreeable  to  the  direc- 
tions of  the  said  Act:  The  Court  unanimously  declared 
it  to  be  their  Opinion  that  the  said  Act  did  not  bind, 
affect  or  concern  the  Inhabitants  of  this  Colony;  inas- 
much as  they  conceive  the  said  Act  to  be  unconstitu- 
tional.9 

It  was  a  bold  announcement  for  a  Court  of  minor 
jurisdiction  to  make,  and  the  fact  that  such  a  Court 

"Justice  Gray's  article  in  Quincy's  (Mass.)  Reports,  p.  206, 
and  see  204,  cited  in  McLaughlin's  "The  Courts,"  etc.,  p.  81. 

9  McMaster's  "United  States,"  Vol.  V,  pp.  394,  395.  Prof.  Mc- 
Master  found  this  incident  in  a  newspaper  of  the  period  and 
then  traced  it  to  its  source.  He  kindly  gave  me  his  results,  and 
I  have  secured,  as  he  did,  a  certified  copy  of  the  minute  in  ques- 
tion, which  is  contained  in  "Minute  Book  No.  27"  (1765-71), 
p.  30,  still  preserved  among  the  records  of  the  Court  at  East- 
ville,  the  capital  of  Northampton  County.  The  quotation  in  the 
text  is  from  this  source. 


JUDICIARY  TO  THE  CONSTITUTION    55 

announced  the  opinion  that  the  Act  was  "unconstitu- 
tional" seems  to  show  that  American  opinion  was 
deeply  infiltrated  with  this  view. 

Revolution  and  rebellion,  the  determination  to  es- 
cape in  one  way  or  another  from  the  Stamp  Act  and 
the  absolute  control  it  portended,  were  of  course  in 
the  air  of  the  colonies  at  this  time,  but  it  cannot  be 
doubted  that  the  people  among  whom  these  opinions 
were  held  and  this  judicial  announcement  was  made, 
were  already  far  along  on  the  road  towards  our  mod- 
ern doctrine  upon  the  subject.  Otherwise,  the  Execu- 
tive in  Massachusetts  would  not  possibly  have  sug- 
gested (as  it  has  been  seen  that  it  did)  that  the  Judi- 
ciary had  the  express  function  of  examining  into  the 
validity  of  Acts  of  Parliament,  or  that  in  a  proper 
case  they  "should  pay  no  regard  to  them." 

So  far  had  the  belief  of  the  colonists  in  the  doc- 
trine of  Lord  Coke  infiltrated  itself  among  them, 
that  in  1765  Hutchinson  summed  the  matter  up  by 
saying  with  reference  to  the  Stamp  Act: 

j 

The  prevailing  reason  at  this  time  is  that  the  Act  of 

Parliament  is  against  Magna  Charta,  and  the  natural 
Rights  of  Englishmen,  and  therefore,  according  to  Lord 
Coke,  null  and  void. 

And  a  writer  of  fame,  who  examined  this  whole  sub- 
ject some  years  ago,  wrote  that 

even  the  judges  appointed  by  the  Royal  Governor  do 
not  seem  to  have  been  prepared  to  deny  this  principle. 
John  Cushing,  one  of  the  associate  Justices,  in  a  letter 


56  THE  RELATION  OF  THE 

to  Chief  Justice  Hutchinson,  dated  "In  a  hurry,  Feby.  7, 
1766,"  upon  the  question  whether  the  courts  should  be 
opened  without  stamps,  wrote,  "It's  true  it  is  said  an 
Act  of  Parliament  against  natural  Equity  is  void.  It 
will  be  disputed  whether  this  is  such  an  Act.  It  seems 
to  me  the  main  Question  here  is  whether  an  Act  which 
cannot  be  carried  into  execution  should  stop  the  Course 
of  Justice,  and  that  the  Judges  are  more  confined  than 
with  respect  to  an  obsolete  Act."  .  .  .  And  in  1776, 
after  the  Governor  had  left,  and  the  Council  and  House 
of  Representatives  had  assumed  the  Government,  John 
Adams,  in  answering  a  letter  of  congratulation  upon  his 
appointment  as  Chief  Justice  of  Massachusetts,  from 
Wm.  Cushing,  his  senior  associate,  and  who  upon 
Adams's  declination  became  Chief  Justice  in  his  stead, 
and  afterwards  a  Justice  of  the  Supreme  Court  of  the 
United  States,  wrote,  "You  have  my  hearty  concurrence 
in  telling  the  jury  the  nullity  of  Acts  of  Parliament."  10 


Nor  was  this  doctrine  of  Coke's  by  any  means 
such  an  extravagance  in  that  day  as  it  doubtless  now 
seems   to   nearly  all   of   us.11     As  has   been  pointed 

"Justice  Gray's  article  on  "Writs  of  Assistance,"  in  Quincy's 
Reports,  Appendix  I,  pp.  527,  528.  Cushing  had  written  Adams, 
"I  can  tell  the  grand  jury  the  nullity  of  acts  of  parliament,  but 
must  leave  you  to  prove  it  by  the  more  powerful  arguments  of 
the  jus  gladii  divinum,  a  power  not  peculiar  to  kings  or  min- 
isters." To  this  the  ever  doughty  Adams  replied,  "You  have  my 
hearty  concurrence  in  telling  the  jury  the  nullity  of  acts  of 
parliament,  whether  we  can  prove  it  by  the  jus  gladii  or  not. 
I  am  determined  to  die  of  that  opinion,  let  the  jus  gladii  say 
what  it  will."    John  Adams's  "Works,"  Vol.  IX,  pp.  390,  391. 

11  Perhaps  some  approval  of  Coke's  Doctrine  is  to  be  found  in 
the  "Report  of  the  New  York  State  Bar  Association  Committee," 
pp.  15-18.    If  so,  I  think  few  will  agree  with  its  view. 


y. 


JUDICIARY  TO  THE  CONSTITUTION    57 

out,12  there  was  then  no  little  authority  for  it,  and  the 
theory  of  the  omnipotence  of  Parliament  had  not  yet 
assumed  positive  shape.  Several  judicial  decisions 
had  followed  rather  in  the  line  of  Bonham's  Case,  and 
Bacon's  and  Viner's  Abridgments,  and  Comyns' 
Digest,  all  leading  authorities  of  about  the  middle  of 
the  eighteenth  century,  lent  their  united  voices  to  its 
support.  So  the  colonists  had  some  ground  to  stand 
on,  and  probably  they  had  chosen  the  most  available 
weapon  of  defense  they  could  find. 

The  long  war  followed  shortly  on  these  events, 
bringing  in  its  train  terrible  disorganization,  and  show- 
ing to  our  public  men,  even  more  plainly  than  to  the 
outside  world,  the  utter  nakedness  of  our  system  of  /  jr  ' 
government.  The  Central  Power  could  rarely  enforce' 
its  policy,  and  had  at  times  to  proclaim  aloud  its  in- 
capacity and  to  call  upon  the  States  to  enact  laws, 
which  it  had  not  the  authority  to  pass  or  to  enforce. 
The  thirteen  States, — discordant,  dissevered,  and  not 
so  very  far  from  belligerent, — scorned  requisitions, 
passed  laws  in  the  teeth  of  those  of  Congress,  violated 
all  agreements  with  foreign  powers,  and  thus  plunged 
our  foreign  relations  into  such  a  condition  of  con- 
flict and  veritable  chaos  as  could  not  be  permitted  to 
continue. 

We  shall  see  how  all  this  influenced  our  public  men 

and  helped  to  drive  a  much  hesitating  people,  jealous 

to  a  degree  of  one  another,  and  fearful  of  power,  to  ■  ff  /^ 

the  creation  of  a  Union  which  has  resulted,  for  good 

12  Justice  Gray's  article  on  "Writs  of  Assistance,"  in  Quincy's 
(Mass.)  Reports,  Appendix  I,  pp.  395-54°,  or  see  New  York  "Bar 
Association  Committee's  Report,"  immediately  above. 


58        JUDICIARY  AND  CONSTITUTION 

or  ill,  in  that  very  increase  of  the  central  power  which 
many  of  them  so  dreaded.  Could  1787- 1788  have 
foreseen  1915-1918,  I  think  the  student  of  the  earlier 
time  will  agree  that  the  Constitution  would  never  have 
been  adopted.  But  this  is  quite  aside  from  the  mat- 
ters we  are  concerned  with  here. 

The  point  for  us  is  how  the  chaos  of  war  and  the 
lamentable  breaking  down  of  our  system  of  admin- 
istration called  aloud  for  a  cure,  for  some  device  by 
which  the  fourteen  wrangling  systems  of  government 
could  be  controlled  and  turned  in  one  direction,  which 
should  represent  the  will  of  united  America.  This 
was  fairly  burned  into  the  minds  of  many  of  our 
statesmen ;  and  we  shall  see  how  it  came  constantly  to 
the  surface  in  the  Convention  of  1787, — as  well  as, 
in  reality,  called  it  into  being. 


CHAPTER  IV 

OUR  FIRST  ACTUAL  JUDICIAL  DECISIONS  THAT  LAWS 
VIOLATED  THE  CONSTITUTION  AND  WERE  HENCE 
TO  BE  HELD  VOID.  RECOGNITION  OF  THIS  DOC- 
TRINE.     ITS  RAPID  SPREAD 

The  time  and  the  circumstances  of  1776- 1787 
were  far  from  propitious  for  the  creation  of  desirable 
principles  of  administration;  and  it  is  a  striking  fact 
that  even  during  those  troublous  years  the  old  in- 
herited doctrines  of  our  colonial  days,  of  which  pre- 
ceding pages  of  this  book  have  treated,  still  found 
expression, — even  grew.  Heredity  continued  to  as- 
sert itself,  and  selection  and  specialization  of  the  best 
traits  of  the  earlier  period  began  to  lead  rapidly 
towards  that  system  of  Judicial  Power,  which  the 
United  States  have  ever  known. 

To  this  period  belong  the  first  actual  decisions  of 
our  courts  that  specific  laws  passed  by  the  Legislature 
were  unauthorized,  and  hence  void,  or  unconstitutional, 
and  the  court's  consequent  refusal  to  enforce  them; 
while  in  other  cases,  or  in  other  bodies,  the  general 
doctrine  was  recognized  and  at  times  most  boldly  as- 
serted by  men  of  prominence,  if  in  some  instances  the 
assertion  was  hesitating,  or  perhaps  even  vague. 
Many  a  rill  and  many  a  rivulet  was  flowing  slowly  on   j  ^  j 

59 


H& 


6o  THE  RELATION  OF  THE 

to  unite  at  length  in  that  vast  river  that  has  ever 
characterized  the  American  Judicial  System. 

In  that  period,  the  first  instance  in  which  the  sub- 
ject was  possibly  discussed  and  considered  was  the 
case  of  Josiah  Philips  in  Virginia  in  1778-79;  but  it 
furnishes  no  precedent  l  and  is  only  to  be  noted  be- 
cause it  has  long  been  thought  to  be  one,  and  because 
the  contradictory  statements  of  the  various  actors  in 
it  at  a  much  later  period, — when  waning  memory  was 
failing  them,  with  all  other  faculties, — have  always 
seemed  to  indicate  that  the  question  of  the  court's 
power  to  decline  to  carry  out  a  law,  on  the  ground  of 
its  unconstitutionality,  was  at  least  talked  of  in  the 
consideration  of  the  case.  But,  as  shown  above,  late 
investigation  has  demonstrated  that  the  question  was 
in  reality  never  presented  by  the  facts  of  the  case  and 
the  utterly  irreconcilable  old-man  statements  of  the 

1  Philips  had  long  hidden  in  the  swamps  of  Virginia,  coming 
out  now  and  then  to  devastate  and  maraud.  The  authorities 
could  not  apprehend  him,  and  finally  the  Legislature,  on  motion 
of  Jefferson,  passed  an  act  of  attainder  against  him  in  May,  1778, 
to  go  into  effect  if  he  should  not  give  himself  up  by  June  30, 
1778.  He  was  later  tried  for  robbery  and  executed,  but  it  has 
until  recently  been  a  matter  of  doubt  whether  this  was  because 
the  Attorney-General  decided  not  to  act  upon  the  attainder  or 
because  the  court  held  the  attainder  unconstitutional.  The  vari- 
ous statements  of  the  chief  actors  and  of  historians  cannot  be 
reconciled.  It  has  been  recently  shown,  however,  by  Jesse  Tur- 
ner ("A  Phantom  Precedent,"  in  Amer.  Law  Review,  Vol. 
XLVIII,  pp.  321-344),  from  a  record  of  Princess  Ann  County, 
that  on  June  II,  1778  (before  the  attainder  was  to  come  into 
being),  Philips  was  present  in  court  and  was  charged  with 
feloniously  robbing.  See  also  Edward  S.  Corwin's  "Doctrine 
of  Judicial  Review,"  pp.  71,  72:  Burk's  Girardin's  "Virginia," 
Vol.  IV,  pp.  305,  306;  Tucker's  "Blackstone,"  Vol.  I,  Appendix, 
p.  293 :  "The  Case  of  Josiah  Philips,"  by  Wm.  P.  Trent,  Amer. 
Histor.  Rev.,  Vol.  I,  pp.  444-54;  etc.,  etc. 


JUDICIARY  TO  THE  CONSTITUTION   61 

actors  in  it  are  far  too  vague  to  furnish  a  foundation 
for  history. 

The  march  of  time  brings  us  now  almost  suddenly 
to  the  first  well-established  case  in  our  country,  in  y\J 
which  a  court  undertook  to  decide  that  a  specific  stat- 
ute passed  by  their  Legislature  was  in  violation  of  the 
Constitution,  and  hence  void,  and  that  the  court  would 
for  this  reason  decline  to  carry  it  into  execution. 

In  1778  the  Legislature  of  New  Jersey  had  passed 
an  act  providing  for  the  seizure  of  goods  belonging 
to  the  enemy,  and  directing  that  the  trial  in  such 
cases  should  be  held  by  a  jury  of  six,  from  whose 
decision  there  should  be  no  appeal.  It  was  a  violent 
law,  but  was  passed  to  meet  a  great  and  trying  evil. 
There  was  at  the  time  a  specific  provision  in  the  New 
Jersey  Constitution  that  "the  inestimable  right  of 
trial  by  jury  shall  remain  confirmed  as  a  part  of  the 
law  of  this  colony,  without  repeal  forever,"  and  there 
were  other  pertinent  provisions  of  her  earliest  laws, 
one  of  which  read  that  "the  trial  of  all  causes  .  .  . 
shall  be  heard  and  decided  by  the  verdict  or  judgment 
of  twelve  honest  men." 

Proceeding  under  the  Act  of  1778,  Walton,  an  army 
officer,   seized  goods  in  the  possession  of   Holmes,2 

2  All  the  facts  stated  in  the  text  in  regard  to  Holmes  v.  Walton, 
unless  otherwise  specified,  are  taken  from  President  Austin 
Scott's  "Holmes  v.  Walton,  The  New  Jersey  Precedent,"  "Rut- 
gers College  Publications,  No.  8,"  reprinted  from  Amer.  Histor. 
Review,  Vol.  IV  (April,  1899).  Holmes  v.  Walton  is  referred 
to  in  State  v.  Parkhurst,  4  Halstead,  444,  and  at  the  time  of  my 
article  of  1885  I  knew  of  it  only  from  this  source,  and  drew  some 
erroneous  conclusions.  President  Scott  has  since  identified  the 
case  and  shown  these  errors. 


62  THE  RELATION  OF  THE 

as  belonging  to  an  enemy;  and  the  judgment  having 
gone  against  Holmes,  after  trial  before  a  jury  of  six, 
Holmes  took  out  a  certiorari  to  remove  the  record  to 
the  Supreme  Court  of  the  State.  The  case  was  argued 
before  the  Supreme  Court  in  November,  1779,  but 
was  not  decided  until  September,  1780,  when  the 
court  unanimously  reversed  the  decree  of  the  court 
below,  evidently  for  the  reason  that  the  Act  of  1778 
authorizing  a  jury  of  six  was  held  to  violate  the  Con- 
stitution of  the  State,  and  hence  to  be  void. 

The  opinion  has  not  survived,  but  collateral  mat- 
ters make  it  plain  that  this  was  the  reason  of  the 
court's  decision,3  and  the  Legislature  recognized  in 
effect  the  propriety  of  the  decision,  by  passing  a  new 
statute  in  the  matter,  requiring  a  jury  of  twelve  on  the 
demand  of  either  side.  Holmes  v.  Walton  was  de- 
cided by  David  Brearly,4  the  Chief  Justice  of  the 
State,  and  at  the  same  time  William  Paterson  was 
Attorney-General,  and  William  Livingston  Governor 
and  also  Chancellor.  We  shall  see  later  the  part  these 
three  men  took  in  the  Federal  Convention  of   1787, 

"The  New  Jersey  Precedent,"  pp.  7,  8.  For  example,  shortly- 
after  the  decision  citizens  presented  a  petition  to  the  House, 
complaining  that  "the  Justices  of  the  Supreme  Court  have  set 
aside  some  of  the  laws  as  unconstitutional,  and  made  void  the 
proceedings  of  the  magistrates,  though  strictly  agreeable  to  the 
said  laws."  Again,  at  a  later  stage  of  Holmes  v.  Walton,  coun- 
sel assumed  in  argument  that  "a  trial  by  six  men  is  unconsti- 
tutional." 

4  His  colleagues  on  the  bench  were  Smith  and  Symmes.  All 
three  members  of  the  Court  had  served  in  the  field,  and  yet 
agreed  in  the  decision,  despite  the  urgency  of  the  evil  which 
the  Act  was  intended  to  stop.  William  Willcocks  was  originally 
counsel  for  the  winning  party,  and  Elias  Boudinot  also  appeared 
for  him  later. 


JUDICIARY  TO  THE  CONSTITUTION    63 

and  the  use  they  seem  to  have  made  of  Holmes  v. 
Walton. 

Gouverneur  Morris,  too,  knew  of  the  decision, — 
at  least,  a  very  few  years  after  its  date,  and  Varnum, — 
soon  of  Trevett  v.  Weeden  fame, — was  a  member  of 
Congress,  was  present  in  Philadelphia  at  the  time  of 
the  decision,  and  almost  certain  to  have  heard  of  such 
a  case  decided  on  the  other  side  of  the  Delaware, 
which  was  then  a  matter  of  controversy  in  New 
Jersey,  and  of  course  argued  among  public  men  gen- 
erally.5 

Commonwealth  v.  Caton6  in  the  Court  of  Appeals 
of  Virginia  in  1782  is  the  next  case  for  us  to  consider 
in  point  of  time.  This  case  is  not  one  where  any  law 
was  held  to  be  unconstitutional,  but  the  general  ques- 
tion was  under  consideration  by  the  court,  and  the 
case  is  particularly  noteworthy  on  account  of  the  clear- 
ness and  great  boldness  with  which  members  of  the 
bench  announced  their  right  and  power  to  decline  to 
carry  out  a  law,  on  the  ground  of  its  unconstitution- 
ality. It  is  hence  not  a  lawyer's  precedent,  and  the 
remarks  of  the  judges  were  obiter  dicta;  but  history 
does  not  confine  its  consideration  to  such  narrow  and 
technical  rules.  In  its  domain,  the  fact  that  leading 
men  held  and  boldly  announced  certain  views,  under 
great  responsibility,  is  most  persuasive  evidence  that 
those  views  rested  on  some  solid  foundation  and  were 
tending  to  be  accepted  of  the  sons  of  men. 

The  questions  presented  by  Comm.  v.  Caton  were 

6  "The  New  Jersey  Precedent,"  as  above. 
'4  Call,  p.  5. 


64  THE  RELATION  OF  THE 

two :  ( i )  Whether  an  Act  of  the  Virginia  Legislature 
of  1776, — defining  treason,  and  under  which  the 
prisoners  had  been  convicted, — was  a  violation  of  the 
State  Constitution,  and  (2)  Whether,  under  the  Vir- 
ginia Constitution,  a  pardon  of  the  prisoners  by  a 
vote  of  the  House  of  Burgesses  alone  was  valid.  The 
Court  held  that  the  Act  of  1776  did  not  infringe  the 
State  Constitution,  and  that  the  pardon  by  the  Bur- 
gesses alone  was  not  valid;  but  then  the  members  of 
the  Court  went  on  to  announce  their  views  upon  the 
general  question,  and  were  most  of  them  very  clear 
as  to  their  power  and  duty  to  hold  a  statute  uncon- 
stitutional in  a  proper  case.     Wythe,  J.,  said : 

Nay,  more,  if  the  whole  Legislature,  an  event  to  be  dep- 
recated, should  attempt  to  overleap  the  bounds  prescribed 
to  them  by  the  people,  I,  in  administering  the  public 
justice  of  the  country,  will  meet  the  united  powers 
at  my  seat  in  this  tribunal  and,  pointing  to  the  consti- 
tution, will  say  to  them,  here  is  the  limit  of  your  author- 
ity, and  hither  shall  you  go,  but  no  further. 

The  report  adds  that 

Chancellor  Blair  and  the  rest  of  the  judges  were  of 
opinion  that  the  court  had  power  to  declare  any  resolu- 
tion or  act  of  the  Legislature,  or  of  either  branch  of  it, 
to  be  unconstitutional  and  void, 

while  the  note  of  doubt,  which  was  to  be  expected, 
and  which  shows  that  the  vast  import  of  the  question 
was  not  lost  sight  of,  was  sounded  by  Pendleton,  J., 
who  said : 


JUDICIARY  TO  THE  CONSTITUTION    65 

But  how  far  this  court,  in  whom  the  judicial  powers 
may  in  some  sort  be  said  to  be  concentrated,  shall  have 
the  power  to  declare  the  nullity  of  a  law  passed  in  its 
forms  by  the  legislative  powers  without  exercising  the 
powers  of  that  branch,  contrary  to  the  plain  terms  of  that 
Constitution,  is,  indeed,  a  deep,  important,  and  I  will  add, 
tremendous,  question,  the  decision  of  which  might  in- 
volve consequences  to  which  gentlemen  may  not  have 
extended  their  ideas.7 

An  instance  occurred  in  Pennsylvania  in  1782, 
which  is,  however,  no  judicial  decision  upon  the  sub- 
ject, and  did  not  even  reach  the  courts,  but  which 
curiously  illustrates  how  the  same  ferment  was  work- 
ing in  the  minds  of  Americans  generally  and,  when 
it  is  coupled  with  the  instance  next  to  be  mentioned  in 
that  same  leading  State,  shows  how  widespread  was 
the  conviction  of  the  judicial  function  in  the  matter 
of  unconstitutional  laws. 

During  the  war  Washington  had  given  a  passport 
to  a  British  officer  to  transport  clothing  to  British 
prisoners  at  Lancaster,  and  a  large  quantity  of  goods 
had  accordingly  been  conveyed  into  the  State  for  that 

T  Pendleton  was  apparently  still  a  little  in  doubt  at  the  time  of 
the  Virginia  Ratifying  Convention  some  six  years  later,  and  said : 
"My  brethren  in  that  department  [the  judicial]  felt  great  uneasi- 
ness in  their  minds  to  violate  the  Constitution  by  such  a  law. 
They  have  prevented  the  operation  of  some  unconstitutional  laws. 
Notwithstanding  those  violations,  I  rely  upon  the  principles  of 
government — that  it  will  produce  its  own  reform,  by  the  respon- 
sibility resulting  from  frequent  elections."  Cited  from  Elliot's 
"Debates,"  Vol.  Ill,  p.  299,  in  Horace  A.  Davis's  "The  Annul- 
ment of  Legislation  by  the  Supreme  Court,"  in  Amer.  Polit. 
Sci.  Rev.,  Vol.  VII,  p.  573. 


66  THE  RELATION  OF  THE 

purpose.  As  this  was  directly  against  an  express  law 
of  the  State,  the  goods 

were  seized  and  condemned  by  the  proper  magistrate. 
On  a  complaint  to  the  Legislature  of  the  State,  they  re- 
ferred the  same  to  their  judicial  officers,  upon  whose 
report  (that  Congress  being  vested  with  the  power  of 
declaring  war,  the  right  of  giving  safe  passports  to  an 
enemy  was  necessarily  implied,  which,  therefore,  was 
duly  exercised  by  their  Commander-in-Chief,  though  no 
express  power  was  given  to  him  for  that  purpose)  the 
Legislature  declared  their  law  directing  the  condemna- 
tion of  the  goods  void  ab  initio,  and  the  judgment  of 
condemnation  had  no  effect.8 

In  the  pinch  of  doubt,  the  Legislature  called  upon 
"their  judicial  officers"  to  resolve  for  them  the  ques- 
tion of  the  propriety,  or  even  validity,  of  a  statute  of 
the  State,  and  on  their  report  declared  the  law  void. 

The  opinions  held  in  Pennsylvania  appear  still  more 

clearly  in  another  instance.     That  State's  Constitution 

8  Frank  E.  Melvin's  "The  Judicial  Bulwark  of  the  Constitu- 
tion," Atner.  Polit.  Sci.  Rev.,  Vol.  VIII,  pp.  167-204:  see  espe- 
cially p.  194.  Mr.  Melvin  has  not  yet,  I  think,  published  in  full 
his  evidence  in  regard  to  this  case,  but  he  shows  that  the  in- 
stance is  referred  to  in  "Annals  of  Congress,  First  Congress," 
p.  1925,  and  the  details  in  my  text  are  taken  from  there.  The 
statute  of  Pennsylvania  regulating  the  importation  was  passed 
September  20,  1782,  and  is  to  be  found  in  "Statutes  at  Large 
of  Pennsylvania,"  Vol.  X,  pp.  497-505,  and  its  partial  repeal 
of  March  20,  1783,  in  ibid.,  Vol.  XI,  pp.  68-70.  The  repealing 
statute  recites  the  provisions  of  the  original  act  requiring  the 
nature  and  quantity  of  clothing  intended  for  prisoners  of  war 
to  be  certified  to  the  President  and  Council  of  the  State  before 
importation,  and  then  goes  on :  "And  whereas  such  provision  is 
deemed  contrary  to  [the  spirit  of]  the  9th  article  of  the  Con- 
federation," etc.,  etc.,  that  therefore  that  portion  of  the  act  is 
hereby  made  void  and  repealed.  The  Ninth  Article  of  the  Con- 
federation conferred  on  Congress  the  power  to  declare  war. 


JUDICIARY  TO  THE  CONSTITUTION    67 

of  1776  provided  for  a  Council  of  Censors,  whose 
duty  it  was,  among  other  things,  "to  inquire  whether 
the  Constitution  has  been  preserved  inviolate  in  every 
part,"  etc.,  etc.  This  Council  met  in  November,  1783, 
and  appointed  a  committee  to  inquire  what  parts  of  the 
Constitution  required  amendment  and  whether  the  in- 
strument had  been  preserved  inviolate.  The  Commit- 
tee reported  in  January,  1784,  that  there  had  been 
numerous  deviations  from  the  Constitution  which  they 
regarded  as  infringements,  as  well  as  suggested  parts 
which  they  thought  defective.  In  this  latter  connec- 
tion, they  wrote  that  by  the  Constitution, 

the  judges  of  the  Supreme  Court  are  to  be  commissioned 
for  seven  years  only  and  are  removable  (for  misbe- 
havior) at  any  time,  by  the  general  assembly.  Your  com- 
mittee conceive  the  said  constitution  to  be  in  this  re- 
spect materially  defective  .  .  . 

Because  (2),  if  the  assembly  should  pass  an  uncon- 
stitutional law,  and  the  judges  have  virtue  enough  to  re- 
fuse to  obey  it,  the  same  assembly  could  instantly  re- 
move them. 

The  report  was  adopted.9 

Rutgers  v.  Waddington,  decided  in  New  York  in 

1784,  is  the  next  case  in  the  history  of  this  matter; 

and  it  is  a  highly  important  one,  owing  to  the  burning 

9  "The  Proceedings  relative  to  the  calling  of  the  Conventions 
of  1776  and  1790,  etc.,  etc.,  and  the  Council  of  Censors"  (Harris- 
burg,  1825),  PP-  66,  67,  69,  70-114:  I  am  indebted  to  E.  S.  Cor- 
win's  "Doctrine  of  Judicial  Review,"  pp.  40,  41,  for  this  in- 
stance. See  L.  H.  Meader  on  the  "Pennsylvania  Council  of 
Censors,"  in  Pennsylvania  Magazine  of  History  and  Biography 
for  October,  1898.     The  italics  in  the  text  above  are  mine. 


68  THE  RELATION  OF  THE 

public  interest  at  the  time  in  regard  to  the  decision, 
though  it  did  not  turn,  as  did  the  other  cases  treated 
in  this  chapter,  upon  an  incompatibility  between  a 
State  statute  and  the  fundamental  law  of  the  same 
State,  but  between  a  State  statute  and  an  authorized 
action  of  the  Central  Government.  This  distinction 
seems  to  have  escaped  observation  at  the  time,  and  the 
case  appears  to  have  been  regarded  by  opponents  pre- 
cisely as  were  the  others  here  considered,  merely  from 
the  general  standpoint  that  the  Judiciary  was  arrogat- 
ing powers  to  itself;  nevertheless,  the  difference  is  in 
reality  very  great,  and  the  case  will  be  best  treated  in 
the  next  chapter,  together  with  some  others  of  a  like 
character. 

The  year  1 785  was  marked  by  the  Symsbury  case  10 
in  Connecticut,  which  was  an  ejectment  by  the  town 
of  Symsbury  demanding  the  surrender  of  certain 
ground,  held  by  the  defendant  Bidwell  under  a  con- 
veyance by  New  Hartford.  The  original  grant  to 
Symsbury,  made  in  1670,  had  been  contended  by 
newer  and  rival  towns  not  to  be  clear  as  to  its  extent, 
and  a  committee  had  been  appointed  by  the  General 
Assembly,  without  the  concurrence  of  Symsbury,  to 
make  a  survey  and  lay  out  the  lines.  This  was  done, 
and  the  report  confirmed  by  the  Assembly,  with  the 
result  that  the  lands  in  suit  were  found  to  be  outside 
the  grant  to  Symsbury. 

But  the  court,  in  the  suit  of  1785,  was  of  opinion 
that  this  was  an  error,  that  the  original  grant  to 
Symsbury  had  contained  the  lands  in  question  and  that 
"Kirby's  Reports,  pp.  444"453- 


JUDICIARY  TO  THE  CONSTITUTION    69 

the  title  was  still  in  that  town,  unless  otherwise 
divested.  They  had  never  agreed  to  the  survey,  and 
the  court  was  hence  of  opinion  that 

the  Act  of  the  General  Assembly,  confirming  Kimber- 
ley's  [the  surveyor's]  line,  operated  to  restrict  and  limit 
.  .  .  the  jurisdiction  of  the  town  of  Symsbury,  but  could 
not  legally  operate  to  curtail  the  land  before  granted  to 
the  proprietors  of  the  town  of  Symsbury,  without  their 
consent, 

and  that  their  grant  being  the  prior  one,  the  title  was 
in  them.  Judgment  was  accordingly  entered  for  the 
plaintiff.  The  case  was  merely  in  the  County  Court 
of  Litchfield,  but  the  judge  writes  that  the  same  point 
had  been  decided  by  them  in  the  same  way  the  year 
before,  and  that  their  ruling  had  been  affirmed  by  the 
Supreme  Court  of  Errors. 

Symsbury's  case  was  certainly  in  a  technical  sense 
a  clear  decision  in  point,  but  it  seems  to  have  been 
entirely  wanting  in  that  eager  and  burning  attention 
on  the  part  of  the  bar  and  the  public  which  marked 
some  of  the  other  cases  at  about  the  same  date.  But, 
even  if  it  was  thus  less  educative,  it  serves, — perhaps 
even  more  plainly, — to  show  how  the  doctrine  was 
silently  spreading  far  and  wide,  and  coming  to  be 
accepted  by  the  bench  and  bar.  Even  a  dissenting 
judge  in  a  like  case  in  error  wrote : 11 

I  think  it  ought  to  be  admitted  in  the  case  before  us, 
that  the  proprietors  of  Symsbury  could  not  have  their 
11  Ibid.,  pp.  448-453. 


yo  THE  RELATION  OF  THE 

grant  taken  from  them,  or  curtailed,  even  by  the  Gen- 
eral Assembly,  without  their  consent. 

Trevett  v.  Weeden,  in  Rhode  Island  in  1786,  is  an- 
other case  in  which  a  State  statute  was  squarely  held 
unconstitutional,  and  was  refused  enforcement  be- 
cause of  being  in  conflict  with  a  higher,  fundamental 
law.12 

Rhode  Island  had  issued  a  large  amount  of  paper 
money,  and  had  provided  that,  in  case  a  tender  of  it 
should  be  refused,  a  heavy  penalty  might  be  recovered 
against  the  party  refusing,  and  that  the  trial  of  such 
a  case  should  be  held  without  a  jury.  The  funda- 
mental law,  on  the  other  hand,  preserved  inviolate  the 
ancient  right  of  trial  by  jury.  Trevett  v.  Weeden 
presented  the  issue  here  involved,  excited  intense  in- 
terest with  the  public,  and  was  argued  at  length.  Var- 
num  for  the  defendant  quoted  in  his  argument  from 
Locke  and  Vattel,  adapting  their  abstract  views  of 
infant  society  and  social  compact  to  the  actual  history 
of  towns  in  Rhode  Island.  He  cited  a  passage  from 
Vattel  to  the  effect  that  the  Legislature  cannot  alter 
the  fundamental  constitutional  law,  without  express 
authority  so  to  do,  and  ending  "In  short,  these  legis- 
lators  derive  their  power  from  the  constitution;  how 
then  can  they  change  it,  without  destroying  the  foun- 

"Brinton  Coxe  ("Judicial  Power  and  Unconstitutional  Legis- 
lation," p.  267)  and  some  other  writers  distinguish  Trevett  v. 
Weeden  on  the  ground  that  Rhode  Island  had  then  no  written 
constitution,  but  the  Colonial  charter  had  been  at  least  tacitly 
recognized  as  their  fundamental  law,  and  the  statute  in  ques- 
tion was  distinctly  held  to  violate  the  provisions  of  that  charter 
or   constitution. 


JUDICIARY  TO  THE  CONSTITUTION    71 

dation  of  their  authority?"13 — words  to  be  found  in 
American  history  often  since.  The  Court  held  the 
statute  unconstitutional,  but  the  judges  were  then 
summoned  to  appear  before  the  Legislature  and  ex- 
plain their  decision.  They  were  appointed  annually 
by  the  Assembly,  and  were  not  reelected  at  the  ensuing 
election. 

The  case  is  the  first,  but  far  from  the  last,  in  which 
a  contest  was  made  over  the  right  claimed  by  the 
judiciary,  and  the  great  excitement  in  regard  to  the 
decisions  in  this  particular  case  and  in  Rutgers  v. 
Waddington,  seems  to  exclude  absolutely  as  to  them 
at  least  the  belief  held  by  some  writers,  that  in  those 
days  even  important  decisions  remained  unknown  for 
long  periods  or  forever.  The  great  interest  of  the 
body  of  lawyers,  the  public  meetings  and  agitation  by 
the  mass  of  the  people  and  in  the  legislative  halls,  were 
far  too  great  for  such  a  result  to  follow. 

Nor  is  this  all.  It  is  not  the  way  of  lawyers,  in  the 
flush  of  a  great  victory,  to  hide  their  light  under  a 
bushel.  Varnum,  the  winning  counsel  in  Trevett  v. 
Weeden,  was  a  man  widely  known,  then  (1786- 1787), 
as  well  as  in  1 780-1 782,  a  member  of  Congress,  and 
so  little  was  he  silent  in  regard  to  his  success  that  he 
almost  at  once  (1787)  published  quite  a  pamphlet,14 
which  went  at  length  into  the  case  and  his  argument. 

Rutgers  v.  Waddington,  as  will  be  seen,  had  also 
been  the  subject  of  a  contemporary  pamphlet.     Pam- 

18  Coxe's  "Judicial  Power,"  etc.,  p.  240. 

14  "The  Case  of  Trevett  v.  Weeden,"  by  J.  M.  Varnum ;  also  see 
McMaster's  "United  States,"  Vol.  I,  pp.  337-339,  and  Coxe's 
"Judicial  Power,"  etc.,  pp.  234-248. 


I  I 


72  THE  RELATION  OF  THE 

phlets  are  written  for  the  very  purpose  of  making  a  sub- 
ject known,  and  exclude  the  idea  of  oblivion.  As  to 
Varnum,  it  is,  I  submit,  impossible  to  conceive  that 
he, — who,  we  are  told,15  was  recognized  by  his  col- 
leagues in  Congress  as  "a  man  of  uncommon  talents 
and  most  brilliant  eloquence," — did  otherwise  than 
talk  and  perhaps  even  boast  of  his  triumph,  as  well 
as  circulate  his  pamphlet,  so  that  his  then  colleagues 
in  Congress,  and  many  other  leading  men,  must 
quickly  have  become  aware  that  at  least  in  Trevett  v. 
Weeden  it  had  been  judicially  held  that  an  Act  of 
Assembly  was  in  violation  of  the  State  Constitution, 
and  that  the  Court  had  for  this  reason  declined  to 
enforce  the  act. 

Perhaps,  too,  as  has  been  already  hinted  in  these 
pages,  Varnum  had  in  turn  derived  his  inspiration 
from  Holmes  v.  Walton,  which  had  been  decided  while 
he  was  a  member  of  Congress  (1780-82)  and  in  Phila- 
delphia, necessarily  in  close  touch  with  many  of  the 
leading  men  of  the  country.  And  whether  this  con- 
jecture,— for  such,  of  course,  it  is, — as  to  the  knowl- 
edge of  Holmes  v.  Walton  by  Varnum  and  thinking 
public  men  is  justified  or  not,  that  case  was  at  least 
well  known  to  Gouverneur  Morris  in  1785,16  while 
Trevett  v.  Weeden, — evidently  without  search  in  re- 
gard to  this  special  point, — has  been  found  reported 
in  five  contemporary  newspapers.17 

15  Appleton's  Dictionary,  sub  Varnum. 

"Austin  Scott's  "The  New  Jersey  Precedent,"  p.  12,  citing 
Sparks's  "Life  of  Gouverneur  Morris,"  Vol.  Ill,  p.  438. 

"Coxe's  "Judicial  Power,"  etc.,  p.  247,  citing  McMaster's 
"United  States,"  Vol.  I,  p.  339.    See,  also,  Coxe,  pp.  234-248. 


JUDICIARY  TO  THE  CONSTITUTION    73 

Rutgers  v.  Waddington,  too,  which  was  decided  in 
1784, — and  which  is  treated  in  the  next  Chapter, — 
excited  intense  interest  in  New  York,  and  knowledge 
of  the  case  traveled  far  and  wide.  Not  only  was  it 
noticed  at  some  length  in  a  newspaper  published  on 
June  17,  1785,  as  far  away  as  Charleston,  but  this 
paper's  article  was  reprinted  in  the  Pennsylvania 
Gazette  of  July  13,  1785,  from  which  publication  we 
learn  that  the  Mayor,  who  had  decided  the  case, 

having  a  high  opinion  of  Lord  Mansfield's  wisdom  and 
impartiality,  drew  up  a  clear  statement  of  the  case,  and 
desired  to  know  his  opinion,  whether  the  law  of  na- 
tions did  not  sanction  the  distinctions  made  in  the  judg- 
ment delivered  by  the  Mayor's  Court  of  New  York. 
Lord  Mansfield  has  sent  back  an  answer,  expressed  in 
terms  of  the  greatest  politeness  to  the  Mayor,  informing 
him,  that,  in  his  opinion,  the  law  of  nations  could  never 
be  pleaded  against  a  law  of  the  land. 

Trevett  v.  Weeden  and  Rutgers  v.  Waddington,  at 
least,  were  certainly  not  allowed  to  fall  into  oblivion; 
and  we  shall  find  the  same  to  have  been  the  case  as  to 
Bayard  v.  Singleton  in  1787. 

The  principle  involved  in  the  foregoing  cases  was 
also  known  and  recognized  in  New  Hampshire  in 
1785-87.  William  Plumer,  a  leading  lawyer  of  the 
State,  who  often  met  Jeremiah  Mason  and  Daniel 
Webster  in  forensic  battle  at  the  famous  Rockingham 
County  bar,  was  a  member  of  the  Legislature  of  the 
State  in  1785,  and  wrote  that  at  the  second  session 
held  in  that  year : 


74  THE  RELATION  OF  THE 

I  entered  my  protest  singly  and  alone,  against  the  bill 
for  the  recovery  of  small  debts  in  an  expeditious  way  and 
manner;  principally  on  the  ground  that  it  was  unconsti- 
tutional. The  courts  so  pronounced  it,  and  the  succeed- 
ing legislature  repealed  the  law.18 

Here  is,  of  course,  no  judicial  decision,  but  a  most 
positive  statement  of  the  general  doctrine  in  the  Legis- 
lature, and  an  apparent  recognition  of  it  by  the  Legis- 
lature itself.  What  makes  this  instance, — and,  still 
more,  the  case  of  McClary  v.  Gilman,  referred  to 
infra,19 — very  noteworthy  is  the  fact  that  a  pet  fancy 
of  the  New  Hampshire  Legislature  of  colonial  times 
had  been  to  interfere  with  judicial  proceedings,  espe- 
cially by  passing  a  bill  to  grant  a  new  trial  to  a  suitor 

"'The  Life  of  William  Plumer"  by  his  son  William  Plumer, 
Jr-»  P-  59-  Italics  are  mine.  I  have  secured  from  the  office  of 
the  Secretary  of  State  of  New  Hampshire  copies  of  the  Act  of 
November  9,  1785,  "for  the  recovery  of  small  debts  in  an  ex- 
peditious way  and  manner,"  and  of  that  of  June  28,  1787,  repeal- 
ing "an  Act  passed  the  ninth  day  of  November,  1785,  entitled" 
as  immediately  above.  The  laws  are  in  manuscript,  that  of  1785 
in  Vol.  V,  pp.  147-149,  and  that  of  1787  in  ibid.,  p.  367.  Plumer 
apparently  meant  that  the  courts  pronounced  the  particular  act 
unconstitutional,  but  his  memory  perhaps  deceived  him  here,  and 
at  least  the  first  known  judicial  decision  seems  to  have  been 
rendered  in  a  case  of  his  in  1791,  as  will  appear  later.  His 
biographer,  however  states  ("Life,"  pp.  170-172)  that  this  case  of 
1791  (McClary  v.  Gilman,  infra  pp.  173,  174)  was  not  the  first  case 
in  which  a  law  was  held  unconstitutional.  Plumer  was  not  mis- 
taken in  regard  to  the  repeal  of  the  Act  of  1785,  as  is  shown  by 
the  citation  from  the  legislative  records.  Jeremiah  Mason  was 
also  (as  Mr.  F.  E.  Melvin  (Amer.  Polit.  Sci.  Rev.,  Vol.  VIII, 
p.  194)  has  pointed  out)  counsel  in  another  county  of  New 
Hampshire, — Westmoreland, — in  similar  cases  where  the  Leg- 
islature had  been  guilty  of  "prescribing  special  rules  for  the  trial 
of  a  particular  action"  at  approximately  the  same  date.  "Mem- 
oir of  Jeremiah  Mason,"  pp.  26,  27. 

19  Pp.  173,  174. 


JUDICIARY  TO  THE  CONSTITUTION    75 

who  had  lost  his  case :  "restoring  a  party  to  his  rights/' 
as  it  was  called.  Numerous  such  laws  of  the  colony 
had  been  disallowed  by  the  Crown  in  Council;  and  at 
one  time,  in  1764,  no  less  than  sixteen  "extraordi- 
nary" laws  were  so  brought  to  naught,  the  representa- 
tion for  their  repeal  reading: 

The  practice  of  passing  laws  of  this  nature  ...  is  of 
such  a  dangerous  tendency  and  example,  and  many  of 
the  laws  are  so  unconstitutional  and  unjust  that  we  fear 
it  will  be  necessary  that  your  Majesty's  disallowance 
of  them  should  be  made  public  in  order  to  deter  the 
Legislatures  of  your  Majesty's  colonies  from  assuming 
powers  and  taking  cognizance  of  matters  that  do  con- 
stitutionally belong  to  the  Courts  of  Justice  alone. 

The  evil  habit  of  passing  such  laws  continued  after 
independence,20  and  soon  led,  as  will  be  later  shown, 
to  plain  judicial  decisions  that  such  laws  were  void. 

Finally,   one   other   indication   of   how   widespread 

was  the  belief  in  the  power  of  the  Judiciary  in  regard 

to   unconstitutional   laws   must   be   mentioned.     This 

instance  has  not  to  do  with  a  decision  of  a  court,  or 

even    the    expressed    opinion    of    any    governmental 

agency,  nor  did  it  happen  at  a  great  center  of  thought, 

30  Plumer's  "Plumer,"  pp.  170-172.  I  have  considered  this  long 
line  of  New  Hampshire  precedents  in  my  article  "The  American 
Doctrine  of  Judicial  Power,  and  Its  Early  Origin,"  in  47  Amer. 
Law  Review,  pp.  684-688,  and  have  there  stated  how  much  I  was 
indebted  in  the  matter  to  the  aid  of  the  late  Albert  S.  Batchellor, 
the  well-known  editor  of  the  New  Hampshire  State  Papers.  See 
his  "New  Hampshire  Provincial  Papers,"  Vol.  VII,  pp.  2,  199, 
200,  221,  and  his  introduction  to  Vol.  I  of  the  "New  Hampshire 
Laws,"  pp.  49,  50,  520,  710,  859-879.  See  also  Oliver  M.  Dicker- 
son's  "Colonial  Government,"  p.  273  and  generally. 


76  THE  RELATION  OF  THE 

where  new  ideas,  good  and  bad,  are  most  likely  to  find 
expression,  but  in  the  very  fact  of  its  occurrence  in 
an  outlying  district, — among  a  number  of  young  men 
whose  lives  still  lay  before  them,  and  some  of  whom 
later  had  careers  of  distinction, — is  to  be  found  the 
strongest  proof  of  the  sturdy  growth  by  this  date  of 
the  American  Doctrine  of  Judicial  Power. 

In  Danville,  Kentucky,  there  existed  from  1786  to 
1790  a  debating  club  which  called  itself  "The  Political 
Club."  The  very  existence  of  the  society  was  for- 
gotten in  Kentucky  history  until  late  in  the  following 
century  some  of  its  records  were  found  21  by  chance 
among  old  family  papers.  Among  the  club's  mem- 
bers,— thirty  in  number, — was  George  Muter,  Chief 
Justice  of  the  District  Court  of  Kentucky  at  the  time 
of  the  Club's  formation  in  1786,  and  a  member  of  the 
Court  of  Appeals  from  1792  until  after  1801,  at  which 
date  he  was  Chief  Justice. 

In  this  latter  year  (1801),  in  Stidger  v.  Rogers,22 
the  Court  of  Appeals  held  that  a  State  statute  was  in 
violation  of  their  constitution,  hence  void;  and  they 
were  inclined  to  think  that  the  same  statute  changed 
the  obligation  of  a  contract,  and  thereby  violated  the 

M  By  Thomas  Speed,  who  afterwards  edited  them  in  "The 
Political  Club,  Danville,  Ky.,  1786- 1790"  ("Filson  Club  Publi- 
cations, No.  9,  1894").  I  am  indebted  to  T.  L.  Edelen,  Esq., 
of  the  bar  of  Frankfort,  Ky.,  for  calling  my  attention  to  this 
instance,  and  also  to  Mr.  Alfred  Pirtle  of  Louisville,  Ky.,  the 
present  editor  of  the  Filson  Club,  and  to  Miss  Mary  W.  Speed 
of  Louisville,  Ky.,  the  present  owner  of  the  papers  in  question, 
for  aid  in  tracing  out  the  Club's  doings.  My  account  of  the  mat- 
ter is  of  course  taken  from  the  publication  mentioned  above, 
except  where  otherwise  specified. 

22  Kentucky  Decisions,  p.  64. 


JUDICIARY  TO  THE  CONSTITUTION    77 

Federal  Constitution  as  well.  We  shall  soon  see  how 
the  Chief  Justice  may  have  at  least  been  influenced  in 
this  matter  by  some  discussions  of  the  Political  Club. 
Another  member  of  the  Club  was  Thomas  Todd,  who 
was  appointed  to  the  Court  of  Appeals  in  the  very 
end  of  1801,  and  had  a  hand  in  some  of  the  similar 
decisions  soon  following  on  Stidger  v.  Rogers. 

Still  others  "conspicuous  in  shaping  the  beginnings 
of  Kentucky," — members  of  constitutional  conventions 
and  so  on, — were  members  of  the  Club,  and  with  the 
ardor  and  exuberance  of  youth,  they  discussed  many 
a  knotty  problem.  Slavery  and  the  slave-trade,  the 
proposed  United  States  Constitution,  suffrage,  the 
form  of  government  for  Kentucky,  whether  there 
should  be  one  or  two  branches  of  the  Legislature,  the 
powers  of  the  second  branch, — all  these  immense 
questions  were  debated  by  the  Club,  and  on  no  less 
than  two  occasions  they  discussed  the  very  problem  we 
are  concerned  with :  of  statutes  violating  the  Consti- 
tution, and  of  what  it  was  in  such  a  case  the  duty  of 
a  court  to  do. 

The  only  reference  to  the  Club's  existence,  apart 
from  its  long-lost  records,  seems  to  be  contained  in 
the  "Diary"  of  Major  Beatty,  a  paymaster  in  the 
United  States  Army,  who  spent  the  night  at  Danville 
on  April  29,  1787,23  and  wrote  in  his  "Diary"  that  he 
had  been  much  disturbed  by 

23  The  Filson  Club  publication  gives  this  date  as  August  29, 
1786,  but  Miss  Speed  called  my  attention  to  the  fact  that  there 
is  certainly  an  error  here,  as  the  Club  did  not  hold  its  first  meet- 
ing until  December  27,  1786.  After  some  correspondence,  I 
found  that  the  original  "Diary"  is  preserved  in  the  Collections 


78  THE  RELATION  OF  THE 

a  Political  Club  which  met  in  the  room  next  where  we 
slept  and  kept  us  awake  until  12  or  1  o'clock.  .  .  .  The 
dispute  was :  One  side  insisted  that  an  "Act  of  As- 
sembly was  no  law  when  it  did  not  perfectly  agree  with 
the  Constitution  of  the  State."  It  was  opposed  by  the 
other  party,  and  a  very  long  debate  took  place.  To 
which  the  editor  of  the  papers  adds  that  the  minutes  of 
the  club  contain  an  account  of  this  very  debate,  and  show 
that  the  decision  of  the  club  was  that  an  Act  of  Assem- 
bly must  be  in  accordance  with  the  Constitution  of  the 
State. 

Apparently,  this  moot  point  was  a  favorite  one  with 
the  members,  for  again  on  May  5,  1787,  they  discussed 
the  question:  "If  an  Act  of  Assembly  should  be  con- 
trary to  the  Constitution,  which  ought  to  govern  a 
judge  in  his  decision?",  and  after  the  debate  it  was 
resolved:  "as  the  opinion  of  the  club  that  when  an 
Act  of  Assembly  is  contrary  to  the  Constitution,  the 
judge  ought  to  govern  his  decision  by  the  Constitu- 
tion." 

Todd,  who  later  had  a  share  in  the  early  Kentucky 
decisions  upon  this  subject,  and  who  was  appointed  in 
1807  a  Justice  of  the  Supreme  Court  of  the  United 
States,  was  the  President  of  The  Political  Club  dur- 
ing the  evening  of  May  5,  1787. 

It  seems  impossible  to  understand  the  occurrence 

of  these  discussions  among  a  lot  of  youths  in  an  out- 

of  the  New  York  Historical  Society,  and  Mr.  Kelby,  the  Libra- 
rian, kindly  corrected  the  error  for  me.  He  also  informed  me 
that  the  "Diary"  has  been  published  in  the  "Magazine  of  Ameri- 
can History,"  Vol.  I,  pp.  1 75-179,  235-243,  309-315,  380-384,  432- 
438.  This  publication  has  the  incident  in  question  noted  under 
April  29,   1787. 


JUDICIARY  TO  THE  CONSTITUTION    79 

lying  district,  far  from  the  swarming  hives  of  men, 
unless  the  thesis  which  they  were  debating  was  already 
full-high  advanced  among  their  countrymen  at  some 
of  the  great  centers,  and  had  thence  filtered  out  to  a 
considerable  number  of  public  men  far  and  wide 
throughout  the  country. 


CHAPTER  V 

RUTGERS  V.  WADDINGTON.  OTHER  LIKE  CASES  IN 
STATE  COURTS  HOLDING  VOID  STATE  STATUTES  IN 
CONFLICT  WITH  FEDERAL  ACTION.  CONGRESS 
URGES  THE  GENERAL  USE  OF  THE  JUDICIAL  DE- 
PARTMENT TO  ANNUL  SUCH  LAWS  OF  THE  STATES 

During  the  same  period  in  which  were  decided  the 
cases  we  have  been  considering,  from  about  the  end  of 
the  war  to  the  meeting  of  the  Federal  Convention,  oc- 
curred other  matters  of  vast  influence  upon  the  chapter 
of  American  history  with  which  this  book  is  concerned. 
It  was  a  time  of  drifting  and  disorganization,  with  a 
number  of  small  and  very  new  States  or  Nations, — 
for  such  they  then  were, — legislating  in  many  harmful 
ways,  while  the  Central  Government  was  barely  able 
to  keep  itself  alive  and  to  appease  the  wrath  of  other 
countries.  These  years  have,  not  inaptly,  been  called 
by  a  well-known  writer  'The  Critical  Period." 

Hosts  of  laws  were  passed  by  the  States,  which  led 
to  imbroglios  at  home  or  abroad,  but  the  ones  which 
chiefly  concern  us  here, — because  (as  will  shortly  be 
seen)  they  inevitably  drove  America  still  further  on 
the  road  towards  her  doctrine  of  Judicial  Power, — 
were  those  which  violated  treaties  made  with  foreign 
countries,  particularly  the  Treaty  of  Peace. 

80 


JUDICIARY  AND  CONSTITUTION        81 

Laws  in  contravention  of  the  Treaty  of  Peace  with 
Great  Britain, — or  at  least  strenuously  objected  to  by 
the  latter  Power  upon  that  ground, — existed  in  nearly 
all  the  States,  and  were  a  most  serious  handicap  to 
those  who  administered  our  General  Government. 
Thirteen  States  with  popular  Legislatures,  interspersed 
of  course  with  time-serving  demagogues,  whose  chief 
aim  in  public  affairs  was  to  make  themselves  solid  with 
the  masses,  and  who  were  often  lamentably  ignorant 
of  international  relations  and  of  the  obligations  of 
faith  and  honor  which  they  carried,  were  not  calculated 
to  lead  to  a  strict  adherence  to  promises  made  in 
treaties  negotiated  by  the  weak  and  far-removed  Cen- 
tral Power. 

America  then  made  a  bad  name  for  herself ;  and  the 
leading  men  in  Congress  were  often  at  their  wits'  end 
to  decide  what  to  do.  Knowing  well  these  violations 
of  treaties,  often  confronted  with  bitter  complaints 
from  foreign  countries  that  prior  treaties  had  been 
repeatedly  deprived  by  the  States  of  all  actual  effect, 
the  administrators  of  our  foreign  affairs  had  indeed 
a  hard  task.  Madison  spoke  in  the  Federal  Conven- 
tion of  the  violations  by  the  States  of 

the  law  of  nations  and  of  treaties,  which,  if  not  pre- 
vented, must  involve  us  in  the  calamities  of  foreign  wars. 
[And  went  on]  ...  the  files  of  Congress  contain  com- 
plaints already  from  almost  every  nation  with  which 
treaties  have  been  formed.1 

1  Elliots  "Debates,"  Vol.  V,  p.  207. 


82  THE  RELATION  OF  THE 

The  evil  was  crying  and  called  aloud  for  amend- 
ment, but  there  was  not  power  enough  vested  in  the 
Central  Government  for  it  to  be  able  to  enforce  its 
wishes.  The  subject  was  discussed  in  Congress,  at 
least  as  early  as  1783,  and  there  can  be  no  doubt  that 
the  method  of  cure  was  long  and  often  talked  of 
among  leading  men.  It  is  certainly  most  noteworthy 
that  the  governmental  agency  finally  and  knowingly 
fixed  upon  by  Congress,  in  order  to  be  certain  of  get- 
ting rid  of  these  unauthorized  and  unconstitutional 
laws,  was — as  we  shall  later  find  to  have  been  the 
case, — the  Judiciary. 

Before  coming  to  this,  however,  it  will  be  necessary 
to  consider  the  case  of  Rutgers  v.  Waddington  and  to 
show  what  was  done  in  the  matter  by  the  Judiciaries 
in  several  States,  of  their  own  motion.  In  the  first 
place  it  must  be  noted  that  these  cases  were  not  the 
same  in  principle  as  the  ones  which  have  been  exam- 
ined in  the  prior  Chapter.  All  of  these  latter  were 
concerned  with  a  conflict  between  a  statute  and  the 
Constitution  of  the  State  itself,  to  which  the  Court 
making  the  decision  also  belonged.  Those  now  in  hand 
were  instances  of  a  conflict  between  a  State  statute  and 
a  proceeding  of  the  Central  Power,  authorized  by  all 
the  States.  The  difference  is,  of  course,  important, 
and  the  existence  of  this  second  class  of  conflicts  in 
our  midst  was  beyond  doubt  one  of  the  chief  causes, 
which  led  our  ancestors  to  look  to  the  Judiciary  in 
all  such  cases.  It  was  absolutely  necessary  to  devise 
some  means  by  which  State  laws  violating  the  Federal 


JUDICIARY  TO  THE  CONSTITUTION    83 

authority  could  be  quietly  set  aside,  or  a  General  Gov- 
ernment was  impossible. 

Rutgers  v.  Waddington,  which  has  already  been 
mentioned,  was  the  first  case  of  the  kind,  and  was  by 
far  the  most  conspicuous.  It  excited  intense  interest 
in  New  York,  where  it  was  decided,  and,  beyond  all 
doubt,  knowledge  of  the  decision  traveled  far  and 
wide.  Yet  the  case  does  not  seem  to  have  been  at 
all  distinguished  at  the  time  from  those  in  which  an 
incompatibility  of  a  State  statute  with  the  Constitu- 
tion of  the  same  State  lay  at  the  bottom  of  the  trouble. 
The  decision  of  the  case  presented  the  gravest  diffi- 
culties, in  that  the  judgment  to  be  entered  might  well 
be  one  to  add  fuel  to  the  fire  of  British  dissatisfaction 
at  real  and  alleged  violations  by  us  of  the  Treaty  of 
Peace. 

Rutgers    v.    Waddington 2    was    decided    by    the 

Mayor's  Court  of  New  York  City  in  1784.     It  was  , 

an  action  of  trespass,  brought  under  a  recent  State/    \f\/ V\ 

statute,  to  recover  rent  for  a  brewery,  which  had  been! 

held  by  the  defendant  under  the  orders  of  the  British/ 

military  leaders  (and  to  whom  rent  had  already  been 

paid),   during  the   occupation  by  the   British.     The 

ground  of  the  decision  against  the  claim  was  certainly 

not  made  very  clear  by  the  court,  and  to  the  public 

the  main  point  was  that  a  statute  of  the  Legislature, 

passed  for  a  very  express  purpose,  was  largely  frit- 

'  An  account  of  the  case  was  published  in  1784  in  pamphlet 
form,  and  in  1866  this  was  reprinted,  with  a  valuable  "Historical 
Introduction,"  by  Henry  B.  Dawson.  My  text  is  based  entirely 
on  the  latter  publication,  except  in  the  few  instances  in  which 
I  have  stated  otherwise.  See  also  Coxe's  "Judicial  Power,"  etc. 
pp.  223-233,  for  another  resume  based  mainly  on  Dawson. 


84  THE  RELATION  OF  THE 

tered  away  by  interpretation.  It  seems  clear  that  the 
more  honest  course  would  have  been  to  declare  openly 
that  the  statute  was  no  longer  valid  as  to  any  parts 
which  conflicted  with  the  terms  of  the  Treaty  of 
Peace  made  by  Congress  in  pursuance  of  its  undoubted 
powers.  The  Court,  however,  probably  obsessed  by 
the  picture  distinguished  counsel  had  evidently  drawn 
of  the  serious  consequences  which  might  follow  the 
decision  of  the  case,  had  recourse  to  what  is  sometimes 
called  "the  equity  of  the  statute,"  and  strained  the 
principles  of  the  law  in  a  labored  effort  to  demonstrate 
that  there  was  no  conflict  between  the  statute  and  the 
Treaty  of  Peace.  They  sought  thus  to  avoid  a  clash 
either  of  the  State  with  Congress  or  of  the  Judiciary 
with  the  State  Legislature. 

The  New  York  law  of  March  17,  1783,  had  been 
passed  after  the  British  army  had  sailed  for  England, 
and  when  impoverished  refugee  Americans  were  re- 
turning home.  There  could  be  no  doubt  of  the  inten- 
tion of  the  Legislature;  little  doubt  that  the  law  was 
an  improper  one,  and  none  whatsoever,  that,  under 
the  terms  of  the  Treaty  of  Peace,3  the  State  statute 
would  lead  to  bitter  complaints  by  the  English.  It 
authorized  in  plain  words  a  suit  in  trespass  by  any 
refugee  owner,  who  had  remained  an  adherent  of  the 
patriot  cause,  to  recover  rent  from  those  who  had  oc- 

1  The  provisional  treaty  had  been  signed  at  Paris  on  Novem- 
ber 30,  1782,  but  the  definitive  treaty  not  until  September  3,  1783, 
— after  the  passage  of  the  New  York  Law.  The  treaty  was  rati- 
fied by  Congress  on  January  4,  1784.  It  contained  language  by 
which  any  claims  of  citizens  of  either  country  to  retribution  or 
indemnity  were  released. 


JUDICIARY  TO  THE  CONSTITUTION    85 

cupied  his  real  estate  during  the  possession  of  the 
city  by  the  British,  and  it  very  specifically  provided 
that  "no  defendant  .  .  .  shall  be  permitted  to  plead 
in  justification  any  military  order  or  command  of  the 
enemy." 

In  reply  to  the  plaintiff's  claim,  the  defendant 
pleaded  that  he  was  "a  British  subject,  a  merchant, 
residing  in  an  enemy's  city,  under  the  protection  of 
the  British  army,  by  whom  it  had  been  conquered," 
and  that  on  a  given  date  the  Commissary  General  had 
taken  possession  of  the  premises  in  question  "by  virtue 
of  authority  from  the  Commander-in-Chief,"  and  that 
subsequently  the  defendant  had  occupied  them  under 
a  license  and  permission  from  the  Commissary  Gen- 
eral, while  still  later  he  had  held  them  under  a  license 
and  permission  from  the  British  Commander-in-Chief 
at  a  rent  of  £150  per  annum.  And  he  further  pleaded 
that  under  the  Treaty  of  Peace  and  according  to  the 
general  rules  of  international  law,  any  claim  which 
citizens  of  either  country  might  have  had  to  retribution 
or  indemnity  was  relinquished  and  released.  The 
plaintiff's  replication  set  up  the  provision  of  the  stat- 
ute :  that  no  defendant  should  be  allowed  to  plead  any 
military  order  in  defense.  There  were  then  demur- 
rers by  both  sides. 

It  is  apparent  that  Rutgers  v.  Waddington  pre- 
sented questions  of  the  utmost  seriousness.  The 
Court, — one  of  very  minor  jurisdiction,  and  largely 
confined  to  matters  of  police, — wrote  that  the  case 
was  represented  as  being  of  "high  importance,"  be- 
cause of  involving  questions  which  must  affect  the 


86  THE  RELATION  OF  THE 

"national  character";  and  all  this  seems  to  have  had 
its  effect,  and  to  have  led  the  judges  to  seek  far  and 
wide  for  some  means  of  escape  from  the  threatening 
difficulties. 

The  case  was  elaborately  argued  upon  the  demur- 
rers on  June  29,  before  "a  crowded  and  attentive  audi- 
tory," no  less  than  seven  counsel  being  orally  heard. 
The  plaintiff  was  represented  by  Egbert  Benson,  the 
Attorney-General  of  the  State,  and  three  other  law- 
yers, while  such  great  luminaries  as  Alexander  Ham- 
ilton, Brockholst  Livingston,  and  Morgan  Lewis  were 
all  for  the  defendant.  And  we  need  not  wonder  at 
this  array  of  counsel,  for  Rutgers  v.  Waddington 
seems  to  have  been  regarded  as  a  test-case,  and  many 
other  like  ones  were  either  pending  or  ripe  for  suit. 
Hamilton  tells  us  that  there  was  a  general  opinion, 
"embracing  almost  our  whole  bar,  as  well  as  the  pub- 
lic," that  it  was  useless  to  defend  against  such  claims, 
and  he  adds  that  judgments  were  consequently  en- 
tered against  the  defendants  in  other  suits,  or 
compromises  made,  without  serious  contest.  He 
alone,  he  says,  took  the  opposite  view  "and  opposed 
the  Treaty  to  the  Act";  but  even  after  his  brilliant 
(though  partial)  victory,  he  so  feared  the  result  of  a 
writ  of  error  4  that  Rutgers  v.  Waddington  itself  and 

4  "Though  I  was  never  overruled  in  the  Supreme  Court,"  he 
wrote.  "I  never  got  my  point  established  there.  I  effected  many 
compromises  to  [sic]  my  clients,  afraid  myself  of  the  event 
in  the  Supreme  Court,  and  produced  delays  until  the  exception- 
able part  of  the  act  was  repealed.  The  Supreme  Court  fre- 
quently, in  a  studied  manner,  evaded  the  main  question,  and 
turned  their  decision  upon  the  forms  of  pleading."  Hamilton's 
"Works,"  by  J.  C.  Hamilton,  Vol.  V,  pp.  106-137:  see  especially 
pp.  115,  116.    Ibid.,  Vol.  VII,  p.  199. 


JUDICIARY  TO  THE  CONSTITUTION    87 

other  like  cases  in  his  hands  were,  under  his  advice, 
settled  by  compromise. 

The  Mayor,  who  presided  in  the  Court,  was  James 
Duane,  a  lawyer  and  a  man  long  distinguished  in 
public  affairs.5  With  him  sate  Richard  Varick,  the 
Recorder,  and  five  aldermen.  Duane  rendered  a  most 
elaborate  opinion  on  August  27,  but  it  is  so  labored 
that  it  is  no  easy  task  to  grasp  very  definitely  what 
was  the  ground  on  which  the  Court  really  rested, 
while  a  great  part  of  the  opinion  is  hardly  to  be  sus- 
tained in  law.6  Much  was  said  of  whether  the  plain- 
tiff's case  was  within  the  intent  of  the  statute,  and  of 
"whether  the  Law  of  Nations  gives  the  captors  and 
Defendant  under  them  rights  which  control  the  opera- 
tion of  the  statute  and  bar  the  present  suit";  and, 
again,  of  whether  the  Treaty  of  Peace  implied  such  an 
amnesty  as  to  past  actions  as  released  the  defendant; 
but  the  Court  relied  mainly  on  its  belief  that  the  Law ' 
of  Nations  did  give  the  captors  of  a  hostile  city  the  ; 
right  to  occupy  houses  and  to  lease  them  for  strictly 
military  purposes,  and  interpreted  the  statute  as  not 
meant  to  include  any  one  acting  in  pursuance  of  such 
right.    The  opinion  reads : 

Whoever  then  is  clearly  exempted  from  the  operation 
of  this  statute  by  the  law  of  nations,  this  court  must  take 

6  In  1789,  Duane  was  appointed  United  States  District  Judge 
in  New  York,  and  in  1792  was  one  of  the  judges  to  hold  the 
Invalid  Pension  Act  of  that  year  unconstitutional.  See  infra,  p. 
178. 

'It  has  been  shown  in  the  preceding  chapter  (p.  73,  ante)  that 
Lord  Mansfield,  when  consulted,  wrote  the  Mayor  that,  in  his 
opinion,  the  Law  of  Nations  could  never  be  pleaded  against  a 
Law  of  the  Land. 


88  THE  RELATION  OF  THE 

it  for  granted,  could  never  have  been  intended  to  be  com- 
prehended within  it  by  the  Legislature. 

This  interpretation  under  what  is  called  "the  equity 
of  the  statute"  was  the  main  ground  of  the  decision; 
but  it  was  in  the  very  teeth  of  the  act,  and,  beyond 
doubt,  contrary  to  its  most  plain  intent. 

One  thing  is  very  evident.  Whatever  was  in  reality 
the  actual  basis  of  the  decision,  no  claim  was  made  in 
words  of  a  right  in  the  Judiciary  to  question  a  statute 
passed  by  the  Legislature.    To  quote  Duane's  opinion : 

The  supremacy  of  the  Legislature  need  not  be  called 
into  question;  if  they  think  fit  positively  to  enact  a  law, 
there  is  no  power  which  can  control  them.  When  the 
main  intent  of  such  a  law  is  clearly  expressed,  .  .  .  the 
Judges  are  not  at  liberty  ...  to  reject  it :  for  this  were 
to  set  the  judicial  above  the  legislative  which  would  be 
subversive  of  all  government. 

But  when  a  law  is  expressed  in  general  words,  and 
some  collateral  matter,  which  happens  to  arise  from  those 
general  words,  is  unreasonable,  there  the  judges  are  in 
decency  to  conclude,  that  the  consequences  were  not 
foreseen  by  the  legislature ;  and  therefore  they  are  at 
liberty  to  expound  the  statute  by  equity,  and  only  quoad 
hoc  to  disregard  it. 

The  principle  was  undoubtedly  sound,  but  its  ap- 
plication by  the  Court  was  surely  less  so.  To  argue 
that  the  question  whether  this  very  specific  statute  ap- 
plied to  the  defendant's  case  was  a  collateral  matter, 
happening  to  arise  under  the  statute,  was  carrying  in- 
terpretation far  beyond  its  utmost  limit,  for  plainly 


JUDICIARY  TO  THE  CONSTITUTION    89 

such  was  the  very  main  purpose  of  the  law,  and  the 
statute  could  otherwise  have  little  to  operate  upon.7 

The  case  did  not  go  by  without  reference  to  the  doc- 
trine of  Coke,  which  has  been  so  often  mentioned  in 
these  pages,  and  which  was  so  popular  among  our 
ancestors;  counsel  for  defendant  arguing  that  this  par- 
ticular statute  came  within  its  rule  that  statutes 
against  law  and  reason  are  void.  And,  again,  another 
relic  of  past  beliefs,  which  has  also  been  referred  to, 
came  out  when  the  Court,  in  its  rather  extravagant 
laudation  of  international  law,  expressed  the  opinion 
that  the  primary  law  of  nations  is  but  the  law  of  na- 
ture, and  that  no  state  can  prejudice  or  alter  any  part , 
of  such  law.  But  it  was  admitted  that  this  did  not 
extend  to  those  portions  of  international  law  which 
prevail  merely  by  tacit  consent. 

Much  was  written,  too,  of  the  question  whether  the 
occupation  of  plaintiff's  premises  had  or  had  not  been 
for  military  purposes;  and  the  opinion  was  clear  that 
any  occupation  for  other  purposes  would  not  relieve 
the  defendant.  The  license  of  the  Commissary  Gen- 
eral was  held  to  be  mere  usurpation,  for  such  authority 
belonged,  under  international  law,  only  to  the  Com- 
mander-in-Chief, and  "the  rights  of  the  British  Gen- 

7  The  opinion  (pp.  39-41)  shows  that  counsel  had  put  instances 
which  the  broad  language  of  the  Act  included,  but  which  were 
plainly  not  meant  to  be  within  the  Act.  The  case  of  American 
prisoners  of  war  incarcerated  by  the  British  in  houses  in  New 
York  is  mentioned  by  the  Court  as  one  of  these,  and  the  ques- 
tion asked  whether  they  are  liable  to  the  owners  for  rent,  but 
the  illustration, — though  a  good  enough  one  of  an  instance  in 
which  a  Court  cannot  follow  absolutely  the  literal  words  of  a 
statute, — has  no  real  bearing  on  the  main  question. 


9o  THE  RELATION  OF  THE 

eral .  .  .  could  only  be  communicated  by  his  immediate 
authority." 

The  decision  finally  arrived  at  was  a  half-way  one, 
and  held  the  defendant  liable  for  the  period  during 
which  he  had  held  under  the  Commissary  General,  but 
not  liable  for  his  term  directly  under  the  Commander- 
in-Chief.  International  law,  it  was  said,  recognized 
the  right  of  the  latter  to  use  the  premises  and  to  lease 
them,  and  the  Court  would  presume  that  the  Legisla- 
ture did  not  mean  to  violate  this  principle,  which  (so 
the  Court  said)  could  be  violated  by  no  nation,  and  far 
less  by  any  one  of  our  States,  whose  powers  as  to  ex- 
ternal matters  were  vested  in  Congress. 

Rutgers  v.  Waddington  cannot,  therefore,  be  classed 
among  the  decisions  of  the  period,  which  claim  a  right 
for  the  Judiciary  to  inquire  into  the  constitutionality 
of  laws.  The  language  of  the  opinion  expressly  re- 
nounced any  such  claim ;  and  it  does  not  seem  possible 
to  formulate  in  words  what  was  the  effect  of  the  judg- 
ment, in  the  technical  sense  of  lawyers  and  the  law. 
But  the  ultimate  technical  sense  of  a  judicial  ruling 
is  not  always  that  which  has  the  greatest  influence,  and 
the  most  palpable  point  about  this  case  was  that,  pre- 
cisely as  in  cases  where  the  right  of  the  Judiciary  was 
broadly  claimed,  a  plain  and  positive  statute  was 
largely  set  aside  by  the  Court,  and  a  very  different  rule 
of  law  applied.  This  was,  of  course,  the  feature  which 
appealed  to  the  multitude,  unlearned  in  the  law.  Their 
statute  was  blotted  out  of  existence. 

Nor  was  it  only  the  uneducated  to  whom  this  result 
was  the  striking  fact  in  the  case.    The  public  in  general 


JUDICIARY  TO  THE  CONSTITUTION    91 

so  regarded  the  matter,  and  the  decision  excited  great 
interest  among  large  numbers  of  people.  On  Sep- 
tember 13,  a  mass-meeting  was  called  in  New  York  to 
consider  the  subject,  and  a  committee  appointed  to 
draw  up  an  " Address  to  the  People  of  the  State." 
This  committee,  of  which  Melancthon  Smith  was  one,  ' 
published  a  long  address,8  summing  up  the  procedure 
and  then  going  on  to  say  : 

From  this  state  of  the  case  it  appears  that  the  Mayor's 
Court  have  assumed  and  exercised  a  power  to  set  aside 
an  Act  of  the  State.  .  .  .  That  there  should  be  a  power 
vested  in  the  Courts  of  Judicature,  whereby  they  might 
control  the  supreme  Legislative  power  we  think  is  absurd 
in  itself. 

Nor  did  the  matter  go  unnoticed  at  the  meeting  of 
the  Legislature  in  October,  but  resolutions  were  passed, 
by  25  to  15,  that  the  decision  was  subversive  of  all  law 
and  good  order,  because 

If  a  Court  .  .  .  may  take  upon  them  to  dispense  with 
and  act  in  direct  violation  of  a  plain  and  known  law 
of  the  State,  all  other  Courts,  whether  superior  or  in- 
ferior, may  do  the  like;  and  therewith  will  end  all  our 
dear-bought  rights  and  privileges,  and  Legislatures  be- 
come useless. 

Another  resolution,  calling  for  the  appointment  of 

a  Mayor  and  Recorder  who  should  govern  themselves 

by  the  known  laws  of  the  land,  was  defeated  by  9 

votes  to  31. 

8  Reproduced  in  Dawson's  pamphlet  from  The  New  York 
Packet  and  the  American  Advertiser  of  November  4,  1784. 


92  THE  RELATION  OF  THE 

It  may,  in  conclusion,  be  safely  said  of  Rutgers  v. 
Waddington  that,  in  spite  of  the  fact  that  the  Court 
by  no  means  claimed  the  power  since  possessed  by  our 
American  courts,  its  action  came  at  least  very  close, 
as  a  matter  of  fact,  to  assuming  and  exercising  such 
power,  and  the  public  in  general  so  regarded  the  case. 
It  was  thus  highly  educative,  and  so  constitutes  a  mile- 
stone in  the  general  history  of  the  matter. 

The  specific  point  actually  presented  on  the  record 
was  the  question :  What  was  to  be  done  when  the 
rights  involved  in  a  law-suit  were  found  to  depend 
on  the  provisions  of  a  State  statute,  which  were  in 
conflict  with  some  authorized  action  of  the  Central 
Government?  This  was  at  that  time  a  vital  question 
to  America,  on  account  of  the  serious  disputes  with 
Great  Britain  in  regard  to  the  Treaty,  and  its  consid- 
eration was  by  no  means  confined  to  the  Courts. 

Congress  considered  in  several  instances  the  subject 
of  violations  of  the  Treaty  of  Peace.  On  May  30, 
1783,  Hamilton  reported9  from  a  committee  consisting 
of  himself,  Ellsworth,  Izard,  Madison,  and  Hawkins, 
which  had  been  appointed  to  inquire  what  further  steps 
were  proper  to  be  taken  for  carrying  into  effect  the 
stipulations  of  the  Treaty  of  Peace.  The  resolutions 
which  they  proposed  recited  the  4th,  5th,  and  6th 
clauses  of  the  Treaty10  and  the  desire  to  give  them 
speedy  effect ;  and  then  went  on  that  the  several  States 
"be  required,  and  they  are  hereby  required  to  remove 

""Journals  of  Congress,"  ed.  of  1823,  Vol.  IV,  pp.  224,  225. 

10  These  provided  respectively  that  creditors  should  meet  with 
no  lawful  impediment  to  "the  recovery  of  the  full  value  of  all 
bona  fide  debts";  that  Congress  should  earnestly  recommend  to 


JUDICIARY  TO  THE  CONSTITUTION  93 

all  obstructions  which  may  interpose  in  the  way  of 
the  entire  and  faithful  execution  of  the  4th  and  6th 
articles,"  and  again  earnestly  recommend  them  to  take 
into  serious  consideration  the  5th  article  and  to  con- 
form to  it  in  a  spirit  of  moderation.  The  resolutions 
were,  however,  committed,  and  do  not  seem  to  have 
come  up  again. 

But  when,  on  January  14,  1784,  the  definitive  Treaty 
was  ratified  and  proclaimed,  a  resolution  was  passed 
in  conformity  with  a  clause  of  the  treaty,  recommend- 
ing to  the  Legislatures  of  the  States  to  provide  for 
the  restitution  of  confiscated  property,  and  that  they 
should  revise  their  laws  in  the  premises,  so  as  to  con- 
form to  justice  and  equity.11  This  resolution  was  sent 
to  all  the  States;  and  on  May  3,  1786,  in  pursuance  of  . 
the  directions  of  Congress,  the  Secretary  for  Foreign 
Affairs  wrote  a  circular  letter  to  the  Governors,  in- 
quiring in  regard  to  their  compliance  therewith.1'2 
Here,  we  must  leave  the  halls  of  Congress  for  the 
moment,  in  order  to  inquire  what  had  been  done  mean- 
while in  the  States. 

Their  action  in  the  matter  is  most  striking;  for  in 

several  the  Courts  had  held  that  State  laws,  which 

violated  the  Treaty,  were  of  no  validity,  because  of 

such  violation,  and  had  declined  to  enforce  them.  These 

rulings  have  largely  fallen  into  oblivion,  and  they  were 

the  States  the  restitution  of  confiscated  property,  and  the  revi- 
sion of  all  laws  regarding  the  same ;  and  that  no  future  con- 
fiscation should  be  made  nor  any  prosecution  begun  against  any 
one  because  of  the  part  taken  by  him  in  the  war. 

11  Ibid.,  pp.  323-327. 

""American  State  Papers,  Foreign  Relations,"  Vol.  I,  p.  228, 
appendix  No.  31. 


94  THE  RELATION  OF  THE 

probably  never  widely  known ;  but  their  existence  seems 
to  be  beyond  doubt.  In  his  long  letter13  of  May  29, 
1792,  to  the  British  minister,  defending  our  general 
course,  Jefferson  wrote  that  "treaties  made  by  Con- 
gress according  to  the  Confederation  were  superior  to 
the  laws  of  the  States,"  and  then  went  on  to  detail  in- 
stances in  which  this  had  been  held.  In  Rhode  Island, 
he  wrote:14 

The  attorney  for  the  U.  S.  in  that  state,  speaking  of  an 
act  passed  before  the  treaty,  says,  "This  act  was  consid- 
ered by  our  courts  as  annulled  by  the  treaty  of  peace,15 
and  subsequent  to  the  ratification  thereof,  no  proceedings 
have  been  had  thereon." 

The  Governor  of  Connecticut,  he  added,  wrote  that 

the  Vlth  article  of  the  treaty  was  immediately  observed 
on   receiving  the  same  with  the  proclamation  of   Con- 

"  Jefferson's  "Writings"  by  Paul  Leicester  Ford,  Vol.  VI,  pp.  7 
et  seq.,  or  "American  State  Papers  (Foreign  Relations),"  Vol.  I, 
pp.  201  et  seq.  Mr.  Ford  has  printed  an  early  draft  of  the  let- 
ter, with  comments  made  by  some  to  whom  it  was  submitted; 
while  the  State  Papers  contain  the  letter  as  sent,  with  many 
appendices  which  are  useful  to  us  here.  My  account  and  quota- 
tions are  from  the  Writings,  except  where  I  have  noted  other- 
wise. Jefferson's  view  as  to  the  superiority  of  treaties  to  the 
laws  of  the  States  was  not  devised  in  order  to  make  out  his 
case  and  deceive  the  British  minister.  He  had  written  John 
Adams  from  Paris  on  Feb.  23,  1787:  "It  has  accordingly  been 
the  decision  of  our  courts,  that  the  confederation  is  a  part  of 
the  law  of  the  land,  and  superior  in  authority  to  the  ordinary 
laws,  because  it  cannot  be  altered  by  the  legislature  of  any  one 
state,"  John  Adams's  "Life  and  Works,"  Vol.  IV,  pp.  579,  580. 

14  "Writings,"  Vol.  VI,  p.  43,  or  "State  Papers,"  Vol.  I,  Appen- 
dix No.  19,  pp.  224,  225. 

"Italics  in  original. 


JUDICIARY  TO  THE  CONSTITUTION    95 

gress;  the  Courts  of  justice  adopted  it  as  a  principle  of 
law.15  No  further  prosecutions  were  instituted  against 
any  person  who  came  within  that  article,  &  all  such 
prosecutions  as  were  then  pending  were  discontinued.16 

In  Pennsylvania,  Jefferson  went  on,  the  Attorney 
for  the  United  States  said  that 

the  Judges  have  uniformly,  and  without  hesitation,  de- 
clared in  favor  of  the  treaty,  on  account  of  it's  [sic] 
being  the  supreme  law  of  the  land.  On  this  ground,  they 
have  not  only  discharged  attainted  traitors  from  arrest, 
but  have  frequently  declared  that  they  were  entitled  by 
the  treaty  to  protection.17 

The  attorney  in  New  York  wrote,  so  Jefferson 
summed  up  that  official's  report,  that 

the  act  of  1782  of  that  state  relative  to  the  debts  due  to 
persons  within  the  enemy's  lines  was,  immediately  after 
the  treaty,  restrained  by  the  Superior  courts  of  the 
state,15  from  operating  on  British  creditors,  and  that  he 
did  not  know  a  single  instance  to  the  contrary.18 

Even  Rutgers  v.  Waddington,  of  which  complaint 
had  been  made,  was,  Jefferson  added,  "a  proof  that  the 
courts  consider  the  treaty  as  paramount  to  the  laws 
of  the  states." 

In  Maryland,  though  a  law  had  earlier  compelled 

16  "Writings,"  Vol.  VI,  p.  43,  or  "State  Papers,"  Vol.  I,  Ap- 
pendix No.  18,  p.  224. 

17  "Writings,"  Vol.  VI,  p.  43.  And  see  Respublica  v.  Gordon, 
1  Dallas,  p.  233. 

18  "Writings,"  Vol.  VI,  p.  44- 


% 


96  THE  RELATION  OF  THE 

those  owing  debts  to  British  subjects  to  pay  them  to 
the  State, 

yet  the  judges  of  the  State  General  Court  decided  that 
the  treaty  not  only  repealed  the  law  for  the  future,  but 
for  the  past  also,  and  decreed  that  the  defendant  should 
pay  the  money  again  to  that  British  creditor. 

j     And  in  Virginia,  so  Jefferson  was  told  by  men  of 
teminence, 

both  court  and  counsel  there  avowed  the  opinion  that  the 
treaty  would  control  any  law  of  the  State  opposed  to  it.19 

It  must  next  be  shown  what  further  was  done  in 
the  matter  by  Congress.  The  resolution  of  January 
14,  1784,  calling  upon  the  States  to  revise  their  laws 

19  Ibid.  Massachusetts  had  also  reached  much  the  same  conclu- 
sion (Jefferson's  letter  to  Hammond,  ut  supra,  p.  62),  and  her 
ruling  in  this  matter  seems  to  be  the  instance  referred  to  in 
the  letter, — well  known  to  students  of  this  subject, — of  J.  B. 
Cutting  to  Jefferson,  dated  July  II,  1788  (Bancroft's  "Constitu- 
tion of  the  United  States,"  Vol.  II,  p.  472,  or  "Proceedings  of 
the  Mass.  Histor.  Society,"  2d  series,  Vol.  XVII,  p.  507).  This 
decision,  as  stated  by  Cutting,  seemed  to  be  on  all  fours  with 
Holmes  v.  Walton  and  Trevett  v.  Weeden,  but  A.  C.  Goodell, 
Jr.,  editor  of  the  "Acts  and  Resolves  of  the  Province  of  Massa- 
chusetts Bay,"  identified  it  {Harvard  Law  Review,  Vol.  VII, 
pp.  415-424)  as  probably  one  in  which  the  State  Courts  held  void 
certain  "Resolves"  of  their  Legislature  denying  interest  dur- 
ing the  war  to  British  creditors,  as  being  in  conflict  with  the 
Treaty  of  Peace.  This  view  of  Mr.  Goodell  is  further  strength- 
ened by  Jefferson's  letter  to  Hammond  (ubi  supra),  where  he 
writes  of  Massachusetts'  course  as  to  the  yexed  question  of 
interest  during  the  war,  and  says  that  her  courts  changed  their 
ruling  upon  the  subject,  and  in  the  end  held  that  such  interest 
was  recoverable, — much  as  the  cases  found  by  Mr.  Goodell  seem 
to  show. 


JUDICIARY  TO  THE  CONSTITUTION    97 

so  as  to  make  them  conform  to  the  Treaty,  and  the 
letter  of  May  3,  1786,  from  the  Secretary  for  Foreign 
Affairs  to  each  State,  asking  what  had  been  done  in 
compliance  therewith,  have  been  mentioned.  How- 
ever, before  many  answers  came  in  to  this  inquiry 
Congress  took  another  step  in  the  matter,  which  is 
most  indicative  in  regard  to  the  subject-matter  of  this 
book.  They  recommended  that  all  the  States  should 
adopt  very  closely  the  method,  which  (as  has  just 
been  shown)  some  of  the  State  Judiciaries  had  adopted 
ex  rnero  motu  suo,  and  that  all  should  pass  a  statute 
in  the  same  words,20  directing  their  courts  to  hold 
void  any  law  of  their  particular  State  found  to  be  in 
conflict  with  the  Treaty. 

This  resort  to  the  Judicial  Department  in  such  a 
matter  would  have  been  in  the  highest  degree  unlikely 
in  any  people  who  had  not  our  history  back  of  them, 
but  to  us  it  was  almost  second  nature,  for  use  had, 
as  the  great  poet  says  it  will,  bred  a  habit  in  us.  Though 
nothing,  so  far  as  I  know,  shows  affirmatively  the  in- 
fluences which  guided  the  members  of  Congress  in 
their  action,  yet  it  can  hardly  be  doubted  that  the 
recent  decisions  of  the  Courts  in  some  of  the  States, 
which  have  been  mentioned,  were  the  immediate  ex- 
citing causes,  while  back  of  this  lay  the  beliefs  and 

30  Called  by  Brinton  Coxe  ("Judicial  Power,"  etc.,  pp.  274,  275, 
et  seq).  "The  Identical  Law,"  under  which  name  I  shall  refer 
to  it  in  later  pag6s.  It  was  a  sort  of  predecessor  of  the 
"uniform  laws"  of  modern  days.  All  the  States  except  New 
Hampshire  were  probably  represented  on  this  vote.  Varnum, 
of  Trevett  v.  Weeden  fame,  represented  Rhode  Island.  Frank  E. 
Melvin's  "The  Judicial  Bulwark  of  the  Constitution"  in  The 
Amer.  Polit.  Science  Review,  Vol.  VIII,  p.  173. 


98  THE  RELATION  OF  THE 

the  occasional  actions  of  our  people  almost  since  their 
foundation. 

Congress  unanimously  recommended  on  March  21, 
1787,  that  each  State  should  enact  a  law  in  the  fol- 
lowing words : 

Whereas  certain  laws  made  and  passed  in  some  of  the 
United  States  are  regarded  and  complained  of  as  re- 
pugnant to  the  treaty  of  peace  with  Great  Britain  .  .  . 
And  whereas  justice  to  Great  Britain,  as  well  as  regard 
to  the  honor  and  interest  of  the  United  States,  require 
that  the  said  treaty  be  faithfully  executed,  and  that  all 
obstacles  thereto,  and  particularly  such  as  do  or  may  be 
construed  to  proceed  from  the  laws  of  this  state,  be  ef- 
fectually removed. 

Therefore  be  it  enacted  by  [whatever  the  State's  name 
be]  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  that  such  of  the  acts  or  parts  of  acts  of  the  legis- 
lature of  this  state,  as  are  repugnant  to  the  treaty  of 
peace  .  .  .  hereby  are  repealed.  And  further  that  the 
courts  of  law  and  equity  within  this  state  be  and  they 
hereby  are  directed  and  required  in  all  causes  and  ques- 
tions cognizable  by  them  respectively,  and  arising  from 
or  touching  the  said  treaty,  to  decide  and  adjudge  ac- 
cording to  the  tenor,  true  intent  and  meaning  of  the 
same,  anything  in  the  said  acts,  or  parts  of  acts,  to  the 
contrary  thereof  in  any  wise  notwithstanding.21 


A  few  days  later  (April  13)  Congress  sent  this  rec- 
ommendation to  all  the  States,  with  a  circular  letter, 
hich  evidences  even  more  plainly  their  belief  as  to  the 
Journals  of  Congress,  edition  of  1823,  Vol.  IV,  p.  730. 


:. 


JUDICIARY  TO  THE  CONSTITUTION    99 

function  of  the  Judiciary  in  the  matter  of  unconstitu- 
tional laws.     It  read  in  part: 

Such  a  general  law,  would,  we  think,  be  preferable  to 
one  that  should  minutely  enumerate  the  acts  and  clauses 
intended  to  be  repealed :  because  omissions  might  acci- 
dentally be  made  in  the  enumeration,  or  questions  might 
arise,  and  perhaps  not  be  satisfactorily  determined,  re- 
specting particular  laws  or  clauses,  about  which  contrary 
opinions  may  be  entertained.  By  repealing  in  general 
terms  all  acts  and  clauses  repugnant  to  the  treaty,  the 
business  will  be  turned  over  to  its  proper  department, 
viz.,  the  judicial;22  and  the  courts  of  law  will  find  no 
difficulty  in  deciding  whether  any  particular  act  or  clause 
is  or  is  not  contrary  to  the  treaty.23 

This  recommendation  found  some  response  from  the 
States,  and  the  proposed  law  was  in  its  main  features 
adopted  by  Massachusetts,  Rhode  Island,  Connecticut, 
New  York,  Delaware,  Maryland,  and  North  Carolina. 
New  Jersey  and  Pennsylvania  declared  that  no  law 
existed  with  them  contrary  to  the  Treaty  with  Great 
Britain.24 

22  Italics  mine. 

23  Journals  of  Congress,  edition  of  1823,  Vol.  IV,  pp.  735-73& 
"Jefferson's  "Writings"  by  Ford,  Vol.  VI,  p.  42,  or  "American 

State  Papers,  Foreign  Relations,"  Vol.  I,  pp.  228-231,  Appendices 
Nos.  32-41  and  43.  New  Hampshire  (ibid.  Appendix  No.  32) 
had  already,  apparently  in  response  to  the  resolution  of  Con- 
gress of  January  14,  1784,  repealed  generally  all  laws  of  hers 
repugnant  to  the  Treaty,  but  had  not  specifically  referred  the 
matter  to  the  Judiciary.  Massachusetts,  Connecticut,  New  York, 
and  Delaware  enacted  the  proposed  law  almost  verbatim,  while 
Maryland  and  North  Carolina  respectively  declared  the  Treaty 
to  be  "the  supreme  law  within  this  State,"  or  "a  part  of  the 


\ 


ioo      JUDICIARY  AND  CONSTITUTION 

Six  or  (if  Rhode  Island  is  to  be  included)  seven 
States,  therefore,  had  direct  recourse  to  the  Judicial 
Department  to  decide  what  laws  stood  upon  their 
statute-books  in  violation  of  the  Treaty  of  Peace.  The 
Courts  were  to  compare  the  laws  of  the  State  with 
the  more  fundamental  Treaty  and,  if  they  found  the 
State  law  in  conflict  with  it,  were  to  enter  a  decree  as  if 
the  State  law  had  not  been  in  existence.  In  other 
words,  they  were  to  hold  that  the  latter  was  unauthor- 
ized, that  the  Legislature  had  not  the  power  to  pass 
it.  Such  recourse  to  the  courts  was  most  natural  to 
us  with  our  history,  and  it  is  hardly  possible  to  doubt 
that  the  conferring  and  exercise  of  this  function 
greatly  tended  to  establish  and  confirm  the  growing 
belief  in  the  right  of  the  courts  to  hold  laws  uncon- 
stitutional. 

law  of  the  land,"  and  directed  their  courts  to  follow  it.  Rhode 
Island  declared  it  a  law  of  the  land,  "fully  binding  upon  all 
the  citizens  of  this  State,"  but  did  not  otherwise  call  upon  the 
Judicial   Department. 


CHAPTER  VI-    ,,.;.' '  V,  . 

REVIEW.     BAYARD  V.   SINGLETON 

An  effort  has  been  made  in  the  preceding  pages  to 
trace  out  certain  public  beliefs  held  among  our  colonial 
ancestors  during  the  century  and  a  half  or  so  that  pre- 
ceeded  the  beginnings  of  independence,  in  so  far  as  they 
seem  to  have  a  bearing  upon  the  subject  of  this  book. 
The  record  is,  at  best,  very  incomplete,  and  has  as  yet 
been  but  little  investigated  by  students  in  the  slow  turn- 
ing over  of  the  pages  of  our  colonial  history;  but  some 
indications  of  importance  have  been  found  by  them, 
and  I  think  that  unprejudiced  observers  will  agree  that 
those  days  have  been  shown  to  have  led  directly  and 
most  naturally  to  the  beliefs  and  governmental  prin- 
ciples of  our  later  years. 

Before  going  on  to  the  work  of  the  Federal  Con- 
vention, it  will  be  well  to  try  and  gather  together  in 
a  few  words  the*influences  of  these  earlier  days,  which 
tended  to  lead  our  ancestors  towards  that  Power  of  the 
Judiciary,  with  which  this  book  is  concerned  and  into 
which  it  has  been  shown  that  they  were  rapidly  drift- 
ing before  May,  1787. 

There  are  undoubtedly  some  hints,  but  no  positive 
proof,  that  colonial  courts  occasionally  exercised  that 
very  power  of  rinding  that  a  statute  of  their  Legis- 

101 


102 


THE  RELATION  OF  THE 


/ 


lature  was  unauthorized  by  its  powers,  and  hence  of 
declining  to  carry  it  into  effect,  with  which  we  are  con- 
cerned..' One  -such  instance  seems  even  to  be  pretty 
clearly  .shown  from  the  English  records,  and  one 
•colonial  judge*,  beyond  doubt,  had  the  matter  in  mind, 
and  queried  what  a  court  ought  to  do  when  a  pending 
case  turned  on  an  unauthorized  colonial  enactment. 
These  indications  are,  however,  far  too  slight  to  carry 
conviction,  and  they  cannot  possibly  be  followed  up 
now  and  the  truth  be  discovered  from  the  vast  mass  of 
records  under  which  it  lies  deeply  buried. 

Other  indications  are  of  far  greater  importance. 
There  is  demonstration  that  the  courts,  and  men  in 
public  life  generally,  were  full  of  the  idea  of  funda- 
mental principles  of  justice,  which  could  not  be  trans- 
gressed by  the  legislative  or  any  authority,  and  which 
it  was  the  special  function  of  the  courts  to  exercise  and 
to  maintain  against  the  Legislature  and  all  other  agen- 
cies. As  a  modern  author  wrote:  "The  law  of  God, 
the  law  of  nature,  was  looked  upon  as  the  true  law" 
by  the  colonists,  and  all  temporal  legislation  considered 
binding  only  as  it  was  an  expression  of  this.  Or,  as 
a  writer  of  the  earlier  day  has  been  seen  to  have  put 
it,  man  has  the  power  "jus  dicer e  only;  jus  dare, 
strictly  speaking,  belongs  alone  to  God."1 

1  Paul  Samuel  Reinsch  in  "The  English  Common  Law  in  the 
Early  American  Colonies :  Select  Essays  in  Anglo-American 
Legal  History,"  Vol.  I,  p.  413.  Justice  Gray  wrote  of  Coke's 
similar  doctrine  that  it  "was  repeatedly  asserted  by  Otis  and 
was  a  favorite  in  the  colonies  before  the  Revolution."  Article 
on  "Writs  of  Assistance,"  printed  in  Quincy's  (Mass.)  Reports, 
Appendix  I,  pp.  395-540:  see  especially  pp.  527,  528.  See  ante, 
P-  34- 


JUDICIARY  TO  THE  CONSTITUTION  103 

Coke's  doctrine  in  Bonham's  case  was,  too,  a  leading 
element  and,  in  general  nature,  very  similar  to  that  of 
fundamental  principles;  and  the  reader  has  seen  how 
it  came  to  the  surface  in  time,  soon  finding  very  con- 
crete expression  in  Stamp  Act  days  and  during  the 
early  Revolutionary  mutterings,  when  our  public  men 
were  seeking  for  a  ground  on  which  to  justify  the 
action  they  had  decided  upon. 

Again,  every  one  of  the  colonies  was  used  to  hav- 
ing its  statutes,  though  clothed  with  all  the  forms  of 
law,  set  aside  now  and  then  by  a  higher  power  as  un- 
authorized by  their  charter  or  other  organic  law,  and 
thus  coming  to  be  void.  They  had  many  a  time  seen 
apparent  laws  which  they  had  long  struggled  to  secure, 
and  had  at  last  written  on  their  statute-book,  come 
to  this  untimely  end,  on  the  very  ground  of  their  being 
either  illegal  or  not  in  accordance  with  a  more  funda- 
mental law.  They  struggled  in  some  instances  to  save 
these  pets  of  theirs,  by  reenacting  them,  or  occasionally 
by  some  indirect  device  such  as  the  weak  will  resort 
to  in  a  struggle  with  the  strong.  They  talked  of  this 
function,  too,  knew  it  well,  and  at  times  the  opponents 
of  a  measure  warned  its  advocates  that  the  proposed 
law  would  be  thus  held  unauthorized.  The  very  word 
unconstitutional,  with  which  we  are  so  familiar,  was 
even  used,  at  least  in  the  English  records,  in  this  con- 
nection. 

It  is  remarkable  how  closely  the  action  of  the  Privy 
Council,  in  a  few  of  these  cases,  resembled  the  action 
of  our  American  courts  in  modern  days  in  holding  a 
statute  unconstitutional,  and  hence  refusing  to  carry 


104  THE  RELATION  OF  THE 

it  out.  Thus,  Rhode  Island  passed  a  law,  about  1703, 
to  create  an  admiralty  court.  The  law  was  objected 
to,  and  Attorney-General  Northey,  to  whom  it  was  re- 
ferred for  his  opinion,  reported  that  the  charter  of 
Rhode  Island  gave  no  power  to  create  an  admiralty 
court.  Thereupon,  though  the  charter  did  not  at  all 
provide  for  a  royal  veto,  the  law  was  recommended  for 
disallowance,  and  then  promptly  disallowed  by  the 
King  in  Council.2  The  ground  of  the  conclusion  evi- 
dently was  that  the  law  was  not  authorized  by  the 
charter,  was  ultra  vires, — as  we  say  to-day  of  a  cor- 
poration's like  acts, — or  unconstitutional,  as  we  say  of 
statutes  not  authorized  by  the  fundamental  law. 

Very  much  the  same  result  was  reached,  too,  by 
strictly  judicial  methods,  which  far  more  nearly  re- 
semble the  function  of  the  courts  with  which  we  are 
so  familiar.  It  seems  that  now  and  then,  even  in  ordi- 
nary law-suits  in  Westminster  Hall,3  when  the  decision 
depended  upon  some  colonial  statute,  the  Courts  held 
the  statute  unauthorized,  and  refused  to  enforce  it  on 
this  ground.  But  far  more  frequent  were  the  instances 
of  direct  appeals  to  the  Privy  Council  from  a  decree  of 
a  colonial  court.  Both  these  classes  were  quite  different 
technically  from  the  disallowance  of  laws  by  the  King 
in  Council,  but  the  result  both  in  cases  of  disallowance 
and  in  those  of  judicial  appeals  was  too  much  alike 
for  any  but  the  scientific  student  to  hold  the  distinction 

1  Dickerson's    "American    Colonial    Government,"    p.    235. 

*  I  think  such  cases  are  well  known  to  have  occurred,  but 
am  not  aware  of  any  direct  proof  of  the  matter,  except  what 
is  contained  in  the  opinions  of  Yorke  and  Talbot  in  1732,  and  of 
Pratt  and  Yorke  in  1750,  quoted  ante,  pp.  42,  43. 


JUDICIARY  TO  THE  CONSTITUTION  105 

clearly  before  him.  The  two  classes  together  num- 
bered several  hundreds;  and  it  is  as  plain  as  the  noon- 
day sun  that  the  voiding  of  laws  passed  by  the  colonial 
legislatures  was  a  very  vital  matter  to  the  colonists. 
So  well  known  was  it,  even  to  the  mass  of  the  people, 
that  the  King's  action  in  the  matter  was  extensively 
used  in  1776  as  a  means  of  appeal  to  the  popular  heart, 
by  those  who  guided  movements  and  wrote  the  Dec- 
laration of  Independence. 

Here  was  a  considerable  body  of  legislative  and 
of  judicial  action,  as  well  as  of  theoretical  belief, 
during  colonial  times,  which  could  not  but  tend  to 
throw  doubt  upon  the  applicability  to  our  Legislatures' 
actions  of  the  British  doctrine  of  the  omnipotence  of 
Parliament.  Nor  must  it  be  forgotten  that  this  British 
doctrine  was  one  which  the  colonists  thoroughly  de- 
tested. They  had  had  their  experience  of  omnipotence 
and  wanted  no  more  of  it.  A  people  with  this  feeling 
ground  into  them,  and  accustomed  for  about  a  century 
and  a  half  to  see  the  statutes  of  its  legislative  author- 
ity set  aside  in  a  number  of  instances  as  unauthorized, 
and  the  citizens  of  which  often  had  a  hand  in  leading 
up  to  this  result, — even  discussing  whether  some 
proposed  law  lay  within  the  competence  of  their  law- 
making body  or  not, — was  ripe  for  the  acceptance  of 
the  belief  that  their  Legislature  was  strictly  limited 
and  for  the  discovery  of  some  agency  within  their 
own  limits  which  should  exercise  this  function  of  con- 
trolling the  Legislature,  when  once  the  connection  with 
the  British  Empire  should  be  severed. 

Nor,  as  a  matter  of  fact,  did  many  years  pass  by 


106  THE  RELATION  OF  THE 

after  1776,  before  the  agency  in  question  was  found  in 
the  Courts.  The  circumstances  almost  inevitably 
forced  the  duty  upon  them;  for  cases  were  soon  pre- 
sented in  which  the  right  of  one  of  the  parties  to  a 
litigation  depended  upon  some  statute  of  the  Legis- 
lature passed  in  direct  defiance  of  plain  provisions 
of  the  fundamental  law  or  Constitution,  while  the 
other  party  asserted  the  provisions  of  the  Constitution 
as  his  shield  and  protection,  and  called  aloud  for  their 
maintenance.  On  the  one  side  was  a  statute  passed  by 
an  ephemeral  Legislature,  on  the  other  side  a  provision 
of  that  fundamental  Constitution,  to  which  the  Court 
and  the  Legislature  both  owed  their  very  existence,  but 
which  the  latter  had  undertaken  to  violate.  If  the  new 
device  of  written  Constitutions  meant  anything, — un- 
less the  provisions  of  these  instruments  were  at  once 
to  be  allowed  to  drop  into  inanity  as  mere  unenforce- 
able words, — how  could  the  court  do  otherwise  than 
follow  the  fundamental  law  and  refuse  to  carry  into 
effect  the  wrongful,  unauthorized,  or  even  directly  for- 
bidden, statute? 

They,  at  least,  did  quickly  follow  this  course,  and  in 
a  number  of  instances,  scattered  throughout  our  new- 
born country,  the  Judiciary  refused  to  carry  into  effect 
laws  of  their  Legislature  passed  in  violation  of  their 
Constitution.  They  made  then  no  sweeping  claim  of 
authority,  specially  vested  in  them,  to  interpret  the 
Constitution  finally  and  conclusively  for  all  the  great 
agencies  of  government  or  for  all  the  world.  Their 
claim  was  much  more  modest,  and  merely  went  to  the 
effect  that  when  they,  one  of  the  great  agencies,  or 


JUDICIARY  TO  THE  CONSTITUTION  107 

Departments  of  Government,  were  officially  called 
upon  to  act  under  a  statute,  which  was  asserted  by  one  i 
of  the  parties  to  the  suit  to  be  in  violation  of  the  Con-  j 
stitution,  the  Court  must  examine  this  question  for 
itself  independently,  and  that  its  own  action  must  be 
in  accordance  with  the  conclusion  at  which  it  arrived. 

Prior  pages  have  shown  the  instances  in  which  the 
State  Courts  thus  held  State  laws  void,  for  the  reason 
that  they  violated  some  provision  of  the  Constitution 
of  the  State.  And  it  has  also  been  shown  that  cases 
arose  in  many  different  parts  of  the  country,  where  a 
State  law  violated  the  Treaty  of  Peace  or  some  other 
authorized  action  of  Congress,  and  was  for  this  reason 
held  void.  These  latter  were  cases  which  called  im- 
peratively for  some  cure,  or  foreign  interference  by 
war  might  well  have  ruined  us,  and  Congress  and  our 
public  men  sought  persistently  for  the  best  way  out  of 
the  trouble.  It  has  been  seen  that  finally, — so  far  had 
by  that  time  grown  the  belief  in  the  function  of  the 
Judiciary  to  prevent  the  enforcement  of  unconstitu- 
tional laws, — Congress  recommended  the  adoption  by 
all  the  States  of  an  "Identical  Law,"  expressly  drafted 
for  the  purpose  of  referring  all  such  questions  of  State 
laws  violating  the  Treaty  of  Peace  to  the  Judiciary  in 
each  State  for  decision  in  ordinary  law-suits. 

It  would  not  be  easy  to  imagine  a  course  of  action 
that  would  show  more  clearly  than  this  does  the  wide- 
spread belief  in  the  power  of  the  Judiciary,  which  is 
the  subject  of  this  book,  and  to  all  the  evidence  that 
has  already  been  summed  up  is  to  be  added  the  asser- 
tion or  recognition  of  the  power  in  a  number  of  in- 


108  THE  RELATION  OF  THE 

stances  by  courts,  in  proceedings  where  the  question 
was  not  technically  presented,  as  well  as  by  other  gov- 
ernmental agencies,  and  even  in  the  private  discussions 
of  individuals  of  note. 

Nor  was  there  any  let-up  in  the  gathering  evidence 
of  our  American  Doctrine.  During  the  very  sittings 
of  the  Constitutional  Convention  of  1787,  to  which 
we  shall  soon  turn,  still  another  case  directly  in  point 
was  adjudged  in  North  Carolina,  again  asserting  most 
clearly  the  Power  of  the  Judiciary  in  regard  to  un- 
constitutional laws.  But  Bayard  v.  Singleton  4  is  not 
only  instructive  from  the  opinion  and  the  technical 
judgment.  It  had  also  back  of  it  a  history  of  several 
years,  in  which  the  subject  was  at  times  very  actively 
debated,  and  leading  men  wrote  letters  so  plain  that 
he  who  runs  may  read ;  their  design  being  to  convince 
the  public  in  North  Carolina  of  the  Judicial  Power, 
and  to  lead  to  a  decision  denying  effect  to  certain  laws 
of  the  State. 

During  the  Revolution  many  of  our  States  took  pro- 
ceedings to  confiscate  the  property  of  the  Tories,  and 
the  struggle  in  this  matter  lasted  for  a  number  of  years 
after  the  Peace.  North  Carolina  was  one  such  State, 
and  several  violent  and  inexcusable  laws  having  this 
object  in  view  were  put  upon  her  statute-books.  Ap- 
parently the  forfeitures  were  made  under  general  laws, 
and  there  was  later  appointed  a  Board  of  Commission- 
ers of  Forfeited  Estates,  whose  duty  it  was  to  sell  the 
lands,  the  proceeds  to  go  into  the  coffers  of  the  State. 
Troubles  seem  to  have  cropped  up  in  the  enforcement 
4 1  Martin,  p.  42. 


JUDICIARY  TO  THE  CONSTITUTION  109 

of  this  system,  and,  at  least  after  the  war  was  over, 
there  was  a  great  deal  of  opposition  among  leading 
men  to  the  violent  laws  that  were  passed  by  the  Legis- 
lature in  the  effort  to  carry  through  the  system  upon 
which  they  had  entered. 

At  the  session  of  1785,  one  such  law  of  a  very  ultra 
character  was  passed,  which  was  euphemistically 
called,  "The  Quieting  and  Confirming  Act."5  It  seems 
that  people  had  not  always  submitted  with  due  docility 
to  the  conclusions  as  to  forfeitures  reached  by  the 
Commissioners,  but  had  sought  protection  in  the  Courts 
after  the  sale  of  their  lands  by  this  Board;  so  the 
Quieting  Act  was  passed,  under  the  provisions  of 
which,  whenever  in  an  ejectment-suit  the  defendant 
should  file  an  affidavit  that  he  had  bought  from  the 
Commissioners  the  suit  should  be  at  once,  without 
more,  dismissed.  No  inquiry  was  to  be  allowed 
whether  or  not  the  former  owner  ever  had  been  a  Tory, 
nor  even  whether  he  had  been  the  actual  owner  of  the 
lands.  All  was  to  be  left,  as  had  been  decided  during 
the  passion  and  hatred  of  a  civil  war,  under  the  in- 
spiration, perhaps  of  jealousy,  or  envy,  and  upon  no 
better  evidence  than  that  of  the  merest  slander  dropped 
by  many-tongued  Rumor. 

Of  course,  opposition  to  such  a  law  cropped  up 

6  "Public  Acts  of  the  General  Assembly  of  North  Carolina, 
for  1785,"  Chapter  7  (Newbern,  1804),  Vol.  I,  p.  396.  The 
session  began  November  19,  1785,  but  the  date  of  the  law  is 
not  given.  The  provisions  of  the  statute  were  modified  at 
the  session  of  1786  by  a  statute  which  recited  that  doubts  had 
arisen  in  regard  to  the  act  of  1785,  and  authorized  suits  to  be 
brought  by  citizens,  provided  they  did  not  hold  title  from  any 
one  named  in  the  Confiscation  Acts  (Ibid.,  Cap.  6,  1786,  p.  414). 


no  THE  RELATION  OF  THE 

quickly,  and  it  became  the  center  of  a  long  and  hard 
contest.  James  Iredell, — who  had  been  appointed  a 
Judge  of  the  Superior  Court  of  North  Carolina  in 
1777,  but  who  resigned  the  next  year,  and  was  in  1789 
appointed  to  the  Supreme  Court  of  the  United  States, 
which  position  he  held  with  honor  and  credit  until  his 
death  in  1799, — was  a  leader  in  this  contest.  He  had 
sided  with  the  colonies  during  the  Revolution,  but  was 
an  Englishman  by  birth;  and  doubtless  here  was  one 
cause  which  led  him  to  oppose  an  Act  sure  to  bring 
great  hardship  and  the  gravest  injustice  to  some  of  his 
friends  and  relatives.  A  correspondent  wrote  to  Ire- 
dell, on  January  19,  1786,  of 

the  wonderful  law  by  which  the  Assembly  have  arro- 
gated to  themselves  the  judicial  power  in  all  suits  regard- 
ing confiscation.  How  the  people  at  large  will  like  the 
innovation  I  know  not.6 

And  but  ten  days  later  Iredell  wrote  to  another  cor- 
respondent : 

No  consideration  under  Heaven  shall  induce  me,  di- 
rectly or  indirectly,  to  support,  countenance  or  have  act 
or  part  in  carrying  so  infamous  a  law  into  execution.7 

We  shall  see  that  he  adhered  firmly  to  this  resolu- 
tion. 

Still  another  correspondent  wrote  to  Iredell  about 
a  month  later,  denouncing  the  law  in  good,  set  terms, 

""The  Life  and  Correspondence  of  James  Iredell,"  by  G.  J. 
McRee,  Vol.  II,  p.  132. 
'Ibid.,  p.   133- 


JUDICIARY  TO  THE  CONSTITUTION  in 

and  perhaps  opening  the  door  of  truth  in  his  references 
to  their  being  at  the  mercy  of  a  set  of  "greedy  and 
rapacious  Commissioners,"  and  then  went  on  to  urge 
Iredell  to  action. 

I  wish  that  you  could  do  something  more  than  give 
advice,  as  I  am  persuaded  that  if  the  Judges  are  beset  by 
the  principal  gentlemen  of  the  bar  in  a  proper  manner, 
they  will  not  venture  to  go  any  great  lengths.8 

Perhaps  it  was  more  or  less  in  consequence  of  this 
request  that  Iredell  wrote  and  published  in  a  New- 
bern  paper  of  August  17,  1786,  his  well-known  letter 
upon  the  subject  in  general,  over  the  signature  "Elec- 
tor," addressed  "To  the  Public."9  It  is  a  very  remark- 
able paper  and  shows  that  its  writer  saw  the  whole  sub- 
ject very  clearly.  From  whatever  source  his  knowl- 
edge came,  Iredell  understood  the  nature  and  the  neces- 
sity of  the  matter  as  plainly  as  it  can  be  shown,  so 
far  as  I  know,  that  any  of  his  countrymen  then  did. 

The  letter  referred  to  the  anxiety  felt  at  the  time 
their  State  Constitution  was  formed,  and  goes  on  to 
say  that 

It  was  of  course  to  be  considered  how  to  impose  re- 
strictions on  the  legislature,  that  might  still  leave  it  free 
to  all  useful  purposes,  but  at  the  same  time  guard  against 
the  abuse  of  unlimited  power.  We  were  all,  he  went  on 
in  substance,  disgusted  with  the  British  language  of  the 

8  Ibid.,  pp.  137,  138. 

9  Ibid.,  pp.  145-149.     This  letter  is  reproduced  in  Coxe's  "Judi- 
cial Power,"  etc.,  pp.  253-258. 


ii2  THE  RELATION  OF  THE 

omnipotence  of  Parliament,  and  we  felt  its  mischiefs.  "I 
have  therefore  no  doubt  but  that  the  power  of  the  As- 
sembly is  limited  and  defined  by  the  constitution.  It  is 
a  creature  of  the  constitution.  .  .  .  The  great  argument 
is,  that  though  the  Assembly  have  not  a  right  to  violate 
the  constitution,  yet  if  they  in  fact  do  so,  the  only  remedy 
is,  either  by  a  humble  petition  that  the  law  may  be  re- 
pealed, or  a  universal  resistance  of  the  people.  .  .  . 
[After  arguing  the  insufficiency  of  these  two  remedies]. 
These  two  remedies  then  being  rejected,  it  remains  to  be 
inquired  whether  the  judicial  power  hath  any  authority 
to  interfere  in  such  a  case.  The  duty  of  that  power,  I 
conceive,  in  all  cases,  is  to  decide  according  to  the  laws 
of  the  State.  It  will  not  be  denied,  I  suppose,  that  the 
Constitution  is  a  law  of  the  State,  as  well  as  an  act  of 
Assembly,  with  this  difference  only  that  it  is  the  funda- 
mental law,  and  unalterable  by  the  Legislature,  which 
derives  all  its  power  from  it.  One  act  of  Assembly  may 
repeal  another  act  of  Assembly.  For  this  reason,  the  lat- 
ter is  to  be  obeyed,  and  not  the  former.  An  act  of  As- 
sembly cannot  repeal  the  constitution,  or  any  part  of  it. 
For  that  reason,  an  act  of  Assembly,  inconsistent  with 
the  constitution,  is  void,  and  cannot  be  obeyed,  without 
disobeying  the  superior  law  to  which  we  were  previously 
and  irrevocably  bound.  The  judges,  therefore,  must 
take  care  at  their  peril,  that  every  act  of  Assembly  they 
presume  to  enforce  is  warranted  by  the  constitution,  since 
if  it  is  not,  they  act  without  lawful  authority.  This  is 
not  a  usurped  or  a  discretionary  power,  but  one  inevita- 
bly resulting  from  the  constitution  of  their  office,  they 
being  judges  for  the  benefit  of  the  whole  people,  not 
j  mere  servants  of  the  Assembly. 


JUDICIARY  TO  THE  CONSTITUTION  113 

The  Elector  went  on  to  say  that  the  county  courts 
have  the  like  power,  and  that 

the  objection  .  .  .  urged  by  some  persons,  that  sheriffs 
and  other  ministerial  officers  must  do  the  same,  does  not 
apply,  for  the  power  of  judging  rests  with  the  courts, 
and  their  decision  is  final.  Did  a  sheriff  ever  refuse  to 
hang  a  man  because  he  thought  him  unjustly  convicted? 

Beyond  all  doubt,  one  chief  purpose  of  this  letter 
was  to  influence  the  Supreme  Court  of  North  Caro- 
lina, before  which  a  case  had  come  up  at  Newbern 
three  months  earlier  (May,  1786),  wherein  the  con- 
stitutionality of  the  Quieting  and  Confirming  Act  had 
been  argued,  but  which  case  the  court  had  not  decided. 
The  judges  had  evidently  looked  upon  the  question  as 
too  serious  and  too  difficult  to  be  disposed  of  offhand, 
and  had  held  it  open  for  consideration.  The  case  re- 
ferred to  was,  of  course,  Bayard  v.  Singleton.  It  was 
an  ejectment  brought  by  the  prior  owner, — whose  land 
had  been  forfeited  under  the  Sate  laws, — against  the 
defendant,  who  held  under  a  title  derived  from  a  sale 
and  purchase  from  the  Commissioners  of  Forfeited 
Estates.  The  plaintiff  was  represented  at  different 
times, — perhaps  all  through  the  litigation, — by  James 
Iredell,  Samuel  Johnson,  and  William  R.  Davie,  while 
the  defendant's  counsel  were  Abner  Nash  and  Alfred 
Moore.  The  case  was  heard  for  the  first  time,  prob- 
ably in  the  end  of  May,  1786,  and  the  Judges  sitting 
were  Ashe,  Spencer,  and  Williams.10 

"My  account  of  the  case  at  this  stage  is  derived  from  the 
official  report  in  i  Martin,  p.  42  et  seq.;  from  the  Pennsylvania 
Packet  and  Daily  Advertiser  of  Philadelphia,  July  1,  1786,  con- 


U4  THE  RELATION  OF  THE 

Defendant's  counsel,  Nash,  at  once  filed  the  neces- 
sary affidavit,  setting  forth  that  his  client  had  pur- 
chased from  the  Commissioners  of  Forfeited  Estates, 
and  then  moved  to  dismiss  in  accordance  with  the  di- 
rections of  the  Quieting  Act.  This  motion,  the  official 
report, — which  was  written  by  Judge  Spencer, — re- 
cords, "brought  on  long  arguments  from  the  counsel 
on  each  side,  on  constitutional  points,"  but  the  Court 
held  the  case  under  advisement,  the  same  report  goes 
on,  after  remarks  not  to  show  a  "single  sentiment"  as 
to  the  law.  These  cold  and  meager  details  are  pieced 
out  by  the  newspaper  accounts,  which  have  it  that 

The  plaintiff's  lawyers  warmly  exclaimed  against  a 
law,  enacted  to  punish  offenses  committed  a  long  time 
before  its  taking  place;  they  argued  that  it  being  an 
article  of  our  bill  of  rights,  that  retrospective  laws  are 
oppressive,  unjust,  and  incompatible  with  liberty,  where- 
fore no  ex  post  facto  law  ought  to  be  made,  the  Assem- 
bly had  clearly  exceeded  the  limits  of  the  power  which 
the  people  in  whom  all  political  power  is  vested,  and  from 
whom,  solely,  it  derives,  had  delegated  to  their  represen- 
tatives met  in  general  assembly,  and  that  an  act  so  ille- 
gally passed,  was  not  to  be  looked  on  as  a  law.  .  .  . 

!Col.  Davie,  particularly,  sustained  these  arguments 
with  so  much  warmth  and  energy,  that  the  grand  jury, 
considering  his  free  investigation  of  the  Assembly's  con- 
duct, as  a  criminal  step,  in  its  nature  injurious  to,  and 

taining  a  news  item  dated  "Newbern  (N.  C),  June  7,"  and 
from  the  same  journal  of  August  23,  1786,  containing  a  Newbern 
item  dated  June  1,  which  speaks  of  the  court's  adjournment. 
See  also  Battle's  "Address  on  the  History  of  the  Supreme 
Court,"  in  103  North  Carolina  Reports,  pp.  445  et  seq.;  470, 
471;  and  Coxe's  "Judicial  Power/'  etc.,  pp.  248-267. 


JUDICIARY  TO  THE  CONSTITUTION  115 

destructive  of,  and  against  the  peace  and  dignity  of  the 
State,  presented  him  on  the  27th  ult,  but  the  judges, 
either  more  indulgent,  or  better  acquainted  with  the 
rights  of  a  lawyer  defending  his  client,  or  an  unpreju- 
diced citizen  the  liberty  of  his  country,  discharged  him. 
.  .  .  The  defendant's  lawyers  pleaded  that  all  Acts  of 
Assembly  were  laws,  and  their  execution  could  not  be 
prevented.  The  judges,  unwilling  to  approve  of  a  law 
which  seems  unconstitutional,  or  of  disapproving  an  act 
of  the  Legislature  without  the  most  mature  considera- 
tion, have  declined  giving  an  immediate  decision. 

The  newspaper  of  the  later  date  specifies  the  fol- 
lowing as  part  of  the  language  of  Davie  in  his  argu- 
ment, for  which  he  was  "presented," 

that  the  act  of  Assembly  .  .  .  was  in  every  respect  un- 
just, and  expressly  against  the  constitution,  that  the  said 
act  was  the  arbitrary  edict  of  a  leading  party  or  faction 
of  the  Assembly ;  and  that  although  it  was  passed  by  the 
Assembly,  the  said  act  was  null  and  void,  and  not  law; 
and  ought  not  to  be  obeyed  by  the  people ;  or  words  fully 
to  those  purposes.  That  he  considered  the  Assembly  and 
commissioners  as  one,  and  that  they  had  violently  and 
unjustly  seized  the  property  of  the  people,  with  many 
other  assertions,  saying  "the  commissioners  were  the  crea- 
tures of  the  Assembly."  The  court  took  no  steps  in  the 
affair,  but  it  is  understood  that  the  Assembly  will. 

For  a  year  from  this  time  the  case  remained  quies- 
cent, so  far  as  known.  It  was  during  the  summer  fol- 
lowing this  first  hearing  that  Iredell's  letter  of  an 
"Elector"   was  published,   and  probably  many  other 


n6  THE  RELATION  OF  THE 

now  forgotten  discussions  of  the  case  were  held  in 
one  way  or  another.  Doubtless,  as  has  been  already 
suggested,  Iredell's  letter  was  intended  to  influence  the 
Court,  and  perhaps  it  was  the  cause  which  led  to  his 
being  taken  into  the  case.  Nothing,  so  far  as  I  know, 
shows  that  he  had  any  hand  in  the  litigation  until  the 
second  argument  in  May,  1787,  but  he  seems  then  to 
have  taken  the  laboring  oar  at  first  held  by  Davie. 
In  May,  1787,  Davie  was  far  off  in  Philadelphia,  a 
member  of  the  Constitutional  Convention. 

The  second  hearing  was  on  May  30,11  1787,  at  New- 
bern,  when  the  official  report  tells  us  that  Nash's  motion 
to  dismiss  was  renewed  and  that  there  was  a  "very 
lengthy  debate  from  the  bar."  The  Court  recom- 
mended the  parties  to  consent  to  a  fair  decision  of  the 
property  in  question  by  a  jury,  according  to  the  com- 
mon law  of  the  land,  but  this  proposal,  as  well  as  some 
other  one  of  a  like  nature,  failed. 

The  official  report  continues : 

The  court  then  after  every  reasonable  endeavor  had 
been  used  in  vain  for  avoiding  a  disagreeable  difference 
between  the  Legislature  and  the  judicial  powers  of  the 

11  The  Pennsylvania  Packet,  etc.,  of  June  23,  1787,  contains  an 
item  "Newbern,  May  31,"  reading:  "Yesterday  was  agitated  the 
celebrated  question — whether  the  suits  brought  for  the  recovery 
of  confiscated  property  should  be  dismissed,  according  to  the 
act  of  Assembly  called  the  Quieting  Act — when  the  Court  gave 
their  opinion  in  the  negative."  Prof.  William  S.  Carpenter 
("Judicial  Tenure  in  the  United  States,"  Yale  University  Press, 
1918,  p.  19)  writes,  on  the  authority  of  the  Maryland  Gazette 
of  July  3,  1787,  that  the  case  was  decided  on  May  29. 


JUDICIARY  TO  THE  CONSTITUTION  117 

state,  at  length  with  much  apparent  reluctance,12  but 
with  great  deliberation  and  firmness,  gave  their  opinion 
separately,  but  unanimously  for  overruling  the  afore- 
mentioned motion  for  the  dismission  of  the  said  suits. 

In  the  course  of  which  the  judges  observed,  that  the 
obligation  of  their  oaths,  and  the  duty  of  their  office 
required  them  in  that  situation,  to  give  their  opinion  on 
that  important  and  momentous  subject;  and  that  not- 
withstanding the  great  reluctance  they  might  feel  against 
involving  themselves  in  a  dispute  with  the  Legislature 
of  the  state,  yet  no  object  of  concern  or  respect  could 
come  in  competition  or  authorize  them  to  dispense  with 
the  duty  they  owed  the  public,  in  consequence  of  the 
trust  they  were  invested  with  under  the  solemnity  of 
their  oaths.  .  .  . 

That  by  the  constitution  every  citizen  had  undoubtedly 
a  right  to  a  decision  of  his  property  by  a  trial  by  jury. 
For  that  if  the  Legislature  could  take  away  this  right, 
and  require  him  to  stand  condemned  in  his  property  with- 
out a  trial,  it  might  with  as  much  authority  require  his 
life  to  be  taken  away  without  a  trial  by  jury,  and  that 
he  should  stand  condemned  to  die,  without  the  formality 
of  any  trial  at  all:  that  if  the  members  of  the  General 
Assembly  could  do  this,  they  might  with  equal  authority, 
not  only  render  themselves  the  legislators  of  the  state  for 
life,  without  any  further  election  by  the  people,  from 
thence  transmit  the  dignity  and  authority  of  legislation 
down  to  their  heirs  male  forever.  .  .  . 

12  Iredell  wrote  Spaight  in  August  of  the  "infinite  reluctance 
[with  which]  the  judges  came  to  this  decision,  [and]  what  pains 
they  took  by  proposing  expedients  to  obviate  its  necessity";  see 
infra,  p.  121. 


\ 


118  THE  RELATION  OF  THE 

It  is  interesting,  too,  to  see  that,  as  Brinton  Coxe 
pointed  out,13  the  Court  adopted  the  argument  of 
Varnum  one  year  earlier  in  Trevett  v.  Weeden  and 
dating  back  to  Vattel  that,  by  passing  an  act  to  alter 
the  Constitution,  the  Legislature  would  at  once  destroy 
its  own  existence  as  a  Legislature  and  dissolve  the  gov- 
ernment established  by  the  Constitution. 

Nash's  motion  to  dismiss  was  refused,  and  there  was 
a  trial,  the  report  goes  on,  at  which  the  main  question 
was  in  regard  to  the  right  of  an  alien  to  hold  land  in 
North  Carolina.  Upon  the  decision  of  this  case,  so 
the  report  concludes, 

twenty-seven  others  depending  in  the  same  court  upon 
similar,  or  less  substantial  grounds,  were  all  swept  off 
the  docket,  by  non-suits  voluntarily  suffered. 

The  triumph  was  a  great  one,  and  it  shows  very 
clearly  how  far  and  how  wide  the  principle  lying  at 
the  base  of  the  decision  had  by  this  time  spread. 
Judges  and  counsel  were  none  the  less  bold  men  thus 
to  tear  down  a  system,  doubtless  wrongful  and  un- 
just, but  having  back  of  it  a  strong  popular  support, 
as  well  as  the  overwhelming  voice  of  the  legislative 
body.  To  Iredell  is  certainly  due  much  of  the  credit; 
while  Davie,  the  leader  at  the  first  hearing,  and  who 
had  been  threatened  with  criminal  process  for  his  out- 
spoken denunciation  of  the  law  as  null  and  void,  was, 
at  the  time  of  the  second  hearing,  sitting  in  the  Con- 
stitutional Convention  at  Philadelphia,  and  cannot  pos- 

M  "Judicial  Power,"  etc.,  p.  251.  For  Varnum's  argument  in 
Trevett  v.  Weeden,  see  ante,  p.  .70. 


JUDICIARY  TO  THE  CONSTITUTION  119 

sibly  have  forgotten  his  former  argument  nor  have 
failed  to  hear  of  the  final  result  of  the  case,  when 
the  Convention  still  had  a  mass  of  work  ahead  of  it. 
The  decision  in  Bayard  v.  Singleton  and  the  other 
earlier  cases  pointed  clearly  enough  to  a  mode  of  solv- 
ing some  of  their  immensely  difficult  problems. 

It  has  been  said  that  some  writers  hold  the  view  that 
the  early  decisions  refusing  to  execute  an  unconstitu- 
tional law  remained  known  to  but  few,  and  thus  had 
little  influence.  This  has  already  been  clearly  shown 
to  be  a  grave  error  as  to  some  of  them,  notably  Trevett 
v.  Weeden  and  Rutgers  v.  Waddington,  while  the 
striking  similarity  of  the  arguments  advanced  by 
counsel  has  also  just  been  seen.  Bayard  v.  Singleton, 
too,  had  much  of  North  Carolina  by  the  ears  from  the 
early  days  of  the  policy  in  the  Legislature,  out  of  which 
it  grew,  down  to  the  end,  when  twenty-seven  similar 
suits  fell  with  it.  Wrangled  about  in  the  Legislature, 
discussed  in  the  public  papers  near  and  far, — with  the 
eminent  General  Davie  threatened  with  criminal  proc- 
ess for  his  argument,  with  many  hundred  acres  of 
land  doubtless  snatched  back  from  the  purchasers  at 
public  sales, — it  is  impossible  to  suppose  that  the  deci- 
sion in  this  particular  case  remained  hidden  under  a 
bushel.  Later  pages  will  show,  too,  how  strangely 
opportune  it  was  for  the  Convention,  and  that  it 
seemed  to  come  in  the  nick  of  time,  when  the  absolute 
veto  on  all  State  laws  was  exciting  the  gravest  discon- 
tent, and  the  method  of  judicial  control  was  looming 
up  in  its  place. 


120  THE  RELATION  OF  THE 

Of  course,  by  no  means  all  looked  upon  Bayard  v. 
Singleton  as  did  Iredell  and  Davie.  Richard  Dobbs 
Spaight  was  a  colleague  of  Davie's  in  the  Convention 
from  North  Carolina,  and  utterly  disapproved  of  the 
decision.  On  August  12,  1787,  he  wrote14  to  Iredell 
from  Philadelphia,  telling  of  the  recent  reference  to 
the  Committee  of  Detail  of  the  resolutions  which  had 
resulted  from  the  struggles  of  the  Convention,  and 
then  adding : 

The  late  decision  of  our  judges  at  Newbern  must,  in  my 
opinion,  produce  the  most  serious  reflections  in  the  breast 
of  every  thinking  man  and  of  every  well-wisher  of  his 
country.  [After  admitting  the  injustice  of  some  of  the 
laws  passed  and  declining  to  defend  them,  he  goes  on 
that  it  is  the  judges'  usurpation  of  authority  that  he  com- 
plains of.  I  can  find  nothing  in  the  Constitution  to  sup- 
port them,  and  it  would  have  been  absurd  and  contrary 
to  the  practice  of  the  world,  to  grant  them  powers  that 
would  have  operated  as  a  negative  on  the  proceedings  of 
the  Legislature].  The  State  .  .  .  would  be  subject  to 
the  will  of  three  individuals,  who  united  in  their  own 
persons  the  legislative  and  judiciary  powers,  which  no 
monarch  in  Europe  enjoys,  and  which  would  be  more 
despotic  than  the  Roman  Decemvirate,15  and  equally  as 
insufferable.  If  they  possessed  the  power,  what  check  or 
control  would  there  be  to  their  proceedings? 

14McRee's  "Life,"  etc.,  of  Iredell,  Vol.  II,  pp.  168-171,  or  Coxe's 
"Judicial  Power,"  etc.,  Appendix  No.  6,  pp.  385,  386. 

15  Evidently  this  word  should  be  "Triumvirate,"  as  it  is  written 
by  Battle  in  his  "History  of  the  Supreme  Court,"  103  N.  Ca., 
pp.  472-473. 


JUDICIARY  TO  THE  CONSTITUTION  121 

Iredell  in  reply  wrote  to  Spaight,  August  26 :16 

In  regard  to  the  late  decision  at  Newbern,  I  confess  it 
has  ever  been  my  opinion,  that  an  act  inconsistent  with 
the  Constitution  was  void;  and  that  the  judges,  consist- 
ently with  their  duties,  could  not  carry  it  into  effect. 
The  Constitution  appears  to  me  to  be  a  fundamental  law, 
limiting  the  powers  of  the  Legislature,  and  with  which 
every  exercise  of  those  powers  must,  necessarily,  be  com- 
pared. [He  next  refers  to  the  British  Parliament  and  I 
its  absolute  power,  so  that  any  act  passed  by  it],  not  I 
inconsistent  with  natural  justice  ( for  that  curb  is  avowed  / 
by  the  judges  even  in  England),  would  have  been  bind- 
ing on  the  people.  It  really  appears  to  me,  the  exercise 
of  the  power  is  unavoidable,  the  Constitution  not  being  a 
mere  imaginary  thing.  ...  It  really  seems  to  me  the 
danger  is  the  most  chimerical  that  can  be  supposed  of 
this  power  being  abused;  and  if  you  had  seen  as  I  did, 
with  what  infinite  reluctance  the  judges  came  to  this  de- 
cision, what  pains  they  took  by  proposing  expedients  to 
avoid  its  necessity,  you  would  have  seen  in  a  strong  light 
how  little  probable  it  is  a  judge  would  ever  give  such 
a  judgment,  where  he  thought  he  could  possibly  avoid  it. 
...  I  believe  many  think  as  you  do  upon  this  subject, 
though  I  have  not  heard  much  said  about  it,  and  I  only 
speak  of  the  general  question,  independent  of  an  applica- 
tion to  any  case  whatever.  Most  of  the  lawyers,  I  be- 
lieve, are  of  my  opinion  in  regard  to  that. 

By  the  time  of  the  meeting  of  the  Federal  Conven- 
tion of  1787,  therefore,  three  positive  and  strictly  tech- 
nical decisions  had  been  rendered,  asserting  the  Courts* 

10  McRee's  "Iredell,"  Vol.  II,  pp.  172-176,  or  Coxe's  "Judicial 
Power,"  pp.  259-263. 


/ 


122  THE  RELATION  OF  THE 

power  to  hold  a  State  law  void,  because  of  not  being 
authorized  under  the  State  Constitution  in  as  many 
States  (New  Jersey,  Connecticut,  and  Rhode  Island); 
and  in  New  York  the  decision  of  the  Court  in  Rutgers 
v.  Waddington,  though  not  its  reasoning,  came  to 
much  the  same  result,  being  generally  looked  upon 
as  setting  aside  a  law  that  the  court  thought  unauthor- 
ized, without  much  discrimination  in  regard  to  the 
source  of  the  statute  and  of  the  more  fundamental 
law.  In  two  other  leading  States,  moreover, — Vir- 
ginia and  Pennsylvania, — the  right  of  the  Judiciary 
had, been  recognized  in  the  courts,  or  by  other  im- 
portant administrative  agencies,  and  in  New  Hamp- 
shire it  had  been  asserted  and,  it  might  perhaps  be 
added,  recognized.  Thus,  without  including  those 
cases  turning  on  violations  of  the  Treaty,  which  de- 
pended upon  decisions  either  of  the  lower  courts  or 
decisions  which  have  not  been  preserved,  in  six  States 
out  of  the  thirteen,  there  had  been  recognition  of  the 
doctrine.  For  a  year,  too,  before  the  Convention  met, 
Bayard  v.  Singleton  had  been  under  discussion  in 
North  Carolina,  and  its  final  decision  in  favor  of  the 
judicial  power  was  known  to  the  members  of  the 
Convention,  while  their  discussions  were  still  in  the 
inchoate  stage  of  mere  resolutions.  Before  the  dele- 
gates reached  their  final  conclusions,  the  leaders  must 
have  often  discussed  the  case,  and  have  known  that 
North  Carolina  was  the  fourth  State  to  have  rendered 
a  positive  and  undeniable  decision  that  the  courts  had 
the  power,  and  were  in  duty  bound,  to  refuse  the  aid  of 


JUDICIARY  TO  THE  CONSTITUTION  123 

their  arm  in  the  execution  of  a  statute  that  was,  in 
their  opinion,  in  violation  of  the  fundamental  law. 

Behind  all  this,  too,  lay  as  a  background  our  history 
in  the  matter  during  colonial  and  early  Revolutionary 
days. 


CHAPTER  VII 

THE  CONSTITUTIONAL  CONVENTION  OF  1 787.  ITS 
ADOPTION  OF  THE  JUDICIAL  METHOD  OF  VOIDING 
UNCONSTITUTIONAL  LAWS 

The  Convention  of  1787  was  composed  in  great  part 
of  statesmen, — men  who  had  been  long  in  service  and 
had  been  trained  in  the  old  school.  They  did  not  think 
that  one  man  was  likely  by  a  week's  "intensive  study" 
to  work  out  successfully  a  new  system  that  would 
change  in  to  to  some  branch  of  the  system  of  law  and 
custom,  which  had  grown  up  by  the  attrition  of  thou- 
sands of  minds  during  a  long  course  of  years.  When 
change  became  desirable,  they  were  perhaps  not  quick 
to  recognize  the  need,  but  they  could  do  so  and  would 
then  approach  the  matter  with  care  and  examine  the 
existing  system  and  the  defects  that  had  arisen,  before 
they  ventured  to  essay  the  task  of  creating  a  new  ma- 
chine intended  to  work  better.  They  were  thus  not 
often  called  upon  quickly  to  repeal  a  law  just  passed, 
but  which  was  found  impossible  to  administer,  nor 
were  they  forever  engaged  in  explaining  that  the  lan- 
guage they  had  used  did  not  mean  what  its  words 
plainly  imported.  The  Courts  did  not  have  to  strain 
every  principle  of  law  and  all  the  rules  of  language,  in 
order  to  avoid  grave  injustice  and  not  to  land  in  chaos. 

124 


JUDICIARY  AND  CONSTITUTION      125 

Numbers  of  the  members  of  the  Convention  had 
served  in  Congress  and  knew  the  recent,  as  well  as  the 
past,  history  of  the  country.  They  knew  that  our  pub- 
lic affairs  verged  on  chaos,  that  such  government  as  we 
had  could  not  possibly  continue,  and  that  we  were  very 
likely  in  one  way  or  another  to  lose  even  that  inde- 
pendence which  had  been  won  after  such  efforts.  But 
they  knew,  too,  the  exceeding  difficulty  of  amending  so 
as  to  cure,  and  they  did  not  write  out  a  new  Constitu- 
tion off-hand, — as  did  many  Frenchmen  about  1789, — 
but  went  on  slowly  and  laboriously  to  consider,  to  com- 
pare views,  to  meet  the  essential  necessities  of  the  very 
difficult  situation,  and  by  this  lengthy  and  wearying 
process,  they  brought  forth  an  instrument  which,  what- 
ever may  be  its  fate  after  the  chaos  of  to-day's  war 
is  passed,  at  least  guided  with  eminent  success  for 
about  a  century  and  a  quarter  the  growth  and  pros- 
perity of  a  people,  very  young  and  powerless  at  its 
foundation,  but  since  then  gone  through  a  lusty  youth 
and  now  among  the  most  powerful  and  capable  on 
earth. 

Nearly  every  question  that  came  up  before  the  mem- 
bers of  the  Convention  during  the  months  of  their 
labor  presented  great  difficulties,  but  few  were  so  infin- 
itely difficult  as  that  of  devising  a  means, — with  some 
chance  of  adoption, — to  control  the  States  and  prevent 
them  from  forever  violating  the  laws  and  the  powers 
of  the  Central  Government.  Such  laws  had  been 
passed  by  the  States  under  the  Confederation  in  hosts 
of  instances,  and  had  been  the  means  (as  has  been 
already  shown)  of  getting  us  into  serious  difficulties 


126  THE  RELATION  OF  THE 

I  with  foreign  nations.  The  Treaty  of  Peace  with  Great 
Britain  had  been  violated  by  numbers  of  the  States, 
and  the  late  Mother  Country  was  in  high  indignation 
at  the  failure  of  Tories  to  receive  the  treatment  which 
she  had  meant  to  secure  for  her  late  supporters  in 
the  colonies.  Other  countries,  too,  had  plenty  of  like 
causes  of  complaint.1  Members  of  Congress  had  of 
course  seen  with  especial  clearness  all  the  difficulties 
arising  from  these  general  causes,  and  prior  pages  have 
touched  upon  the  efforts  and  the  plans  devised  to  cure 
such  evils  while  the  Confederation  lasted. 

It  would  not  be  rash  to  assume  that  numbers  of 
members  of  the  coming  Convention  compared  notes 
and  devised  plans  for  solving  the  problems  ahead  of 
them ;  but  I  know  of  no  proof  of  this,  except  in  regard 
to  some  of  the  delegates  from  Virginia.  That  leading 
State  had  taken  an  active  part  in  calling  the  Conven- 
tion, and  its  members  felt  a  degree  of  responsibility, 
owing  to  this  cause.  Madison  evidently  gave  a  deal 
of  thought  to  the  matter,  and  wrote  to  others  outlining 
some  of  his  ideas,  and  in  these  letters  one  of  the  very 
chief  points  in  his  mind  was  the  absolute  need  of  a 
means  to  control  the  separate  States.  He  wrote  to 
Jefferson  (then  in  Europe)  on  March  19,  1787,  tell- 
ing him  of  the  coming  Convention  and  of  some  of  his 
ideas  in  regard  to  it,  and  giving  as  his  opinion  that 
it  would  be  expedient  "to  arm  the  federal  head  with 
a  negative  in  all  cases  whatsoever  on  the  local  Legis- 
latures."2 

1  See  ante,  pp.  80-82. 

'"Works,"  by  Congress,  1865,  Vol.  I,  pp.  284-286. 


JUDICIARY  TO  THE  CONSTITUTION  127 

Randolph  was  also  thinking  of  the  work  of  the 
Convention,  and  wrote3  Madison  on  March  27,  sug- 
gesting the  introduction  of  some  "general  proposi- 
tions" into  the  body  by  Virginia.  To  this  letter  Mad- 
ison replied  on  April  8  with  cordial  approval,4  detail- 
ing his  views  at  some  length,  perhaps  a  little  fearful 
that  Randolph  might  not  agree  with  his  "centralizing" 
views,  but,  none  the  less,  setting  forth  the  need  of  a 
broad  control  of  the  States.  And,  again,  to  Wash- 
ington Madison  wrote5  but  a  few  days  later  (April 
16),  urging  that  positive  power  in  all  cases  which 
required  uniformity  must  be  vested  in  the  general  Gov- 
ernment, and  once  more  specifying  that 

Over  and  above  this  positive  power,  a  negative  in  all 
cases  whatever  on  the  Legislative  acts  of  the  States,  as 
heretofore  exercised  by  the  Kingly  prerogative,  appears 
to  me  to  be  absolutely  necessary,  and  to  be  the  least 
possible  encroachment  on  the  State  jurisdictions. 

When  the  Virginia  deputies  arrived  in  Philadelphia 
they  held  conferences  together  and  concluded,  much 
as  Randolph  had  suggested  to  Madison,  that,  owing 
to  the  prominence  of  Virginia  in  the  general  matter, 
some  initiative  step  might  be  expected  of  them.6  The 
resolutions  offered  by  Randolph  on  May  29th  were  the 
outgrowth  of  these  meetings.  They  contained  a  rough 
outline  of  a  government,  and  the  6th  and  8th  resolu- 
tions read  in  part  as  follows: 

3  Conway's  "Randolph,"  p.  71. 

4  Elliot's  "Debates,"  Vol.  V,  pp.  107,  108. 

5  "Works,"  by  Congress,  1865,  Vol.  I,  p.  287. 

6Farrand,  Vol.  Ill,  pp.  539-551,  or  Elliot,  Vol.  V,  pp.  109-122. 


128  THE  RELATION  OF  THE 

v      6.  That   the    National    Legislature    ought    to   be   im- 
j  powered  ...  to  negative  all  laws  passed  by  the  several 
1  States,  contravening  in  the  opinion  of  the  National  Leg- 
islature the  articles  of  Union,  and  to  call  forth  the  force 
of  the  Union  against  any  member  of  the  Union  failing 
to  fulfill  its  duty  under  the  articles  thereof.  .  .  . 

8.  That  the  Executive,  and  a  convenient  number  of  the 
National  Judiciary,  ought  to  compose  a  council  of  revi- 
sion with  authority  to  examine  every  act  of  the  National 
Legislature  before  it  shall  operate,  &  every  act  of  a  par- 
ticular Legislature  before  a  Negative  thereon  shall  be 
final;  and  that  the  dissent  of  the  said  Council  shall 
amount  to  a  rejection,  unless  the  Act  of  the  National 
Legislature  be  again  passed,  or  that  of  a  particular  Legis- 
lature be  again  negatived  by  of  the  members  of 

each  branch.7 

I  do  not  know  of  anything  to  show  who  had  sug- 
gested the  idea  of  joining  the  Judiciary  with  the  Exec- 
utive as  a  Council  of  Revision,8  but  Madison,  at  least, 
supported  it;  and  he  and  a  few  other  members  were 
most  insistent,  down  to  a  very  late  day,  in  pressing  the 
plan  in  one  form  or  another,  in  order  to  secure  the  im- 
mediate setting  aside  of  harmful  laws.  He  was  evi- 
dently disappointed,  too,  at  the  result;  and  wrote  Jef- 
ferson on  Oct.  24,  1787,9  referring  to  the  general 
power  of  negative  which  he  had  wanted,  adding : 

1  Farrand,  Vol.  I,  p.  21. 

8  The  idea  of  such  a  Council  was  borrowed  from  New  York, 
Madison  said  on  August  14,  Farrand,  Vol.  II,  p.  291.  Frank  E. 
Melvin's  "The  Judicial  Bulwark  of  the  Constitution,"  in  The 
Amer.  Polit.  Science  Revieiv,  Vol.  VIII,  p.  167  et  seq.;  see  foot- 
note 23  on  page  176. 

"Farrand,  Vol.  Ill,  pp.  131-136. 


JUDICIARY  TO  THE  CONSTITUTION  129 

It  may  be  said  that  the  Judicial  authority  under  our  new 
system,  will  keep  the  States  within  their  proper  limits, 
and  supply  the  place  of  a  negative  on  their  laws.  The 
answer  is,  that  it  is  more  convenient  to  prevent  the  pas- 
sage of  a  law  than  to  declare  it  void  after  it  is  passed; 
that  this  will  be  particularly  the  case,  when  the  law  ag- 
grieves individuals,  who  may  be  unable  to  support  an  ap- 
peal against  a  State  to  the  supreme  Judiciary. 

It  will  be  necessary  to  follow  here  to  some  extent 
the  actions  of  the  Convention  in  regard  to  joining  the 
Judiciary  with  the  Executive  as  a  Council  of  Revision 
to  approve  or  disapprove  of  all  laws  of  Congress  and 
of  the  States;  for  not  only  was  this  idea  pressed  in  one 
form  or  another  by  Madison  and  other  leading  men 
down  to  near  the  adjournment,  but  some  strangely  un- 
authorized conclusions  have  been  drawn  by  certain 
modern  writers  from  its  rejection. 

The  power  contained  in  the  6th  clause  of  the  Vir- 
ginia Resolutions,  for  Congress  "to  negative  all  laws, 
passed  by  the  several  States,  contravening,  in  the  opin- 
ion of  the  national  legislature,  the  articles  of  union," 
was  agreed  to  on  May  31.10  But  the  8th  clause  to 
establish  the  proposed  Council  of  Revision  was  a  sub- 
ject of  discussion,  and  the  joining  of  the  Judiciary 
with  the  Executive  in  this  function  was  disapproved 
by  8  States  to  2,  on  motion  of  Gerry,  on  June  4.11 
Gerry  could  not  then  have  known  of  the  very  recent 
decision  in  Bayard  v.  Singleton,  but  he  certainly  knew 
of  other  like  cases,  for  he  spoke  of  them,  and  drew  the 

10  Ibid.,  Vol.  I,  p.  47- 

11  Ibid.,  p.  104 


130  THE  RELATION  OF  THE 

distinction  between  the  power  they  asserted  to  decide 
on  the  constitutionality  of  laws,  and  the  idea  of  making 
the  judiciary  "judges  of  the  policy  of  public  meas- 
ures." Two  days  later  (June  6),  the  same  Council  of 
Revision  was  again  discussed  under  a  motion  to  re- 
consider, but  was  once  more  lost  by  3  votes  to  8  ;12  and 
on  June  8  a  motion  to  extend  the  already  granted  pow- 
ers of  Congress  in  regard  to  negativing  laws  of  the 
States,  so  that  they  should  have  power  "to  negative 
all  laws  which  to  them  shall  appear  improper,"  was 
also  lost.13 

At  this  stage  there  seems  to  be  an  illustration  of  how 
strongly  the  members  felt  the  need  of  concession  and 
compromise,  and,  again,  of  how  very  clear  was  in 
the  minds  of  some  of  them  the  right  of  the  Judiciary 
in  regard  to  unconstitutional  laws.  On  June  10  Ran- 
dolph made  a  communication14  for  conciliating  the 
small  States,  one  part  of  which  was  that,  though  every 
negative  of  a  State  law  should  prevent  its  operation, 
"any  State  may  appeal  to  the  national  Judiciary  against 
a  negative;  and  that  such  negative  if  adjudged*to  be 
contrary  to  the  power  granted  by  the  articles  of  Union, 
shall  be  void,"  and  further  that  "any  individual  con- 
ceiving himself  injured  or  oppressed  by  the  partiality 
or  injustice  of  a  law  of  any  particular  State  may  resort 
to  the  National  Judiciary,  who  may  adjudge  such  laws 
to  be  void,  if  found  contrary  to  the  principles  of  equity 
and  justice."  It  is,  I  think,  too  plain  for  discussion 
from  these  proposals  that  Randolph  had  already  a 

12  Farrand,  Vol.  III.  p.  140. 
"Ibid.,  pp.  162,  163. 
"Ibid.,  Vol.  Ill,  pp.  55,  56. 


JUDICIARY  TO  THE  CONSTITUTION  131 

pretty  clear  comprehension  of  the  general  idea  of  judi- 
cial control,  and  we  shall  find  him15  later  writing  an- 
other provision  in  his  draft  of  a  constitution  to  pro- 
vide for  the  general  exercise  of  the  power  by  the  Judi- 
cial Department. 

The  discussion  heretofore  had  been  in  Committee 
of  the  Whole,  and  the  Committee's  report  was  made 
on  June  13  to  the  Convention  proper.  It  consisted 
of  nineteen  resolutions,16  one  of  which  (the  6th)  gave 
power  to  the  national  legislature  "to  negative  all  laws 
passed  by  the  several  States  contravening  in  the  opin- 
ion of  the  National  Legislature  the  articles  of  Union, 
or  any  treaties  subsisting  under  the  authority  of  the 
Union."  And  the  18th  resolution  contained  a  pro- 
vision, which  looks  like  one  more  then  unseen  indica- 
tion of  that  doctrine  of  Judicial  Power,  which  was  to 
come  later, — that 

the  Legislative,  Executive,  and  Judiciary  powers  within 
the  several  States  ought  to  be  bound  by  oath  to  support 
the  Articles  of  Union. 

The  plan  in  general  was  looked  upon  by  quite  a 
number  of  members,  particularly  from  the  small 
States,  as  highly  national  and  as  giving  all  power  to 
a  few  large  States,  and  the  greatest  dissatisfaction  was 
felt,  so  that,  as  Madison  wrote,  there  was  at  this  time 
"serious  anxiety  for  the  result  of  the  Convention." 

The  members  in  opposition  had  been  holding  meet- 
ings in  the  evenings  to  concert  a  plan  to  take  the  place 

15  Infra.,  pp.  142,  143. 
"Farrand,  Vol.  I,  pp.  236-237. 


132  THE  RELATION  OF  THE 

of  the  proposed  system,  which  they  thought  so  excep- 
tionable. According  to  Luther  Martin,  Gerry  first  I 
proposed  these  meetings ;  and  Gerry,  Mason,  the  dele- 
gates from  New  Jersey  and  Connecticut,  part  of  that 
from  Delaware,  a  member  from  South  Carolina,  one 
from  Georgia,  and  Luther  Martin  attended  at  the  dis- 
cussions.17 It  was,  of  course,  as  their  spokesman  that 
Paterson  of  New  Jersey  on  June  14th  told  the  Con- 
vention that  it  was  the  wish  of  several  delegates  to 
prepare  a  plan  purely  federal,  and  said  they  hoped  to 
present  it  the  next  day.  They  did  so  and,  though  their 
plan18  adhered  largely  to  requisitions,  and  was  soon 
set  aside  as  a  whole  by  the  Convention,  yet  one  clause 
(the  sixth)  became  later  of  vital  importance,  for  it 
contained  the  gist  of  the  method  which  was  finally 
adopted  to  prevent  the  operation  of  unconstitutional 
laws  of  the  States.  It  avoided  the  negative  by  Con- 
gress, which  was  then  still  contained  in  the  Report 
of  the  Committee  of  the  Whole,  and  adopted  what  has 
since  been,  if  it  was  not  at  that  very  day,  called  the 
judicial  method  of  voiding  such  laws. 

The  judiciaries  of  the  several  States  were,  accord- 
ing to  this  proposal,  to  be  "bound  ...  in  their  deci- 
sions" by  authorized  laws  or  treaties  of  the  Central 
Power,  "anything  in  the  respective  laws  of  the  Indi- 
vidual States  to  the  contrary  notwithstanding,"  and  the 
federal  executive  might  call  forth  the  power  of  the 
confederated  States  to  compel  obedience.19    It  is  highly 

17  Farrand,  Vol.  Ill,  pp.  281-286. 
"Ibid,  Vol.  I,  pp.  242-245. 

19  The    clause    as    a    whole    read    as    follows    "6.      Resd.    that 
all  Acts  of  the  U.  States  in  Congs.  made  by  virtue  &  in  pur- 


JUDICIARY  TO  THE  CONSTITUTION  133 

likely20  that  during  the  meetings  of  the  evening  caucus, 
prior  to  June  15th,  the  decision  in  Bayard  v.  Singleton 
at  Newbern  on  May  30  was  known  in  Philadelphia; 
and,  of  course,  to  Gerry  and  any  others  who  knew 
of  the  prior  like  decisions  in  the  country,  it  pointed 
most  clearly  to  the  method  they  had  best  propose,  and 
enormously  emphasized  those  precedents  and  their  im- 
portance as  factors  in  our  public  affairs.  Whether  it 
actually  led  them  to  the  adoption  of  the  clause  they 
suggested,  and  which  has  just  been  quoted,  is  of  course 
conjecture ;  but  it  may  well  be  that  such  was  the  case. 

It  is  impossible  to  attribute  to  the  words  that  the 
judiciaries  in  the  several  States  shall  be  bound  in  their 
decisions  by  authorized  laws  and  so  on,  of  Congress, 
any  meaning  but  that  which  has  become  known  as  the 

suance  of  the  powers  hereby  &  by  the  articles  of  confederation 
vested  in  them,  and  all  Treaties  made  &  ratified  under  the 
authority  of  the  U.  States  shall  be  the  supreme  law  of  the 
respective  States  so  far  forth  as  those  Acts  or  Treaties  shall 
relate  to  the  said  States  or  their  Citizens,  and  that  the  Judiciary 
of  the  several  States  shall  be  bound  thereby  in  their  decisions, 
anything  in  the  respective  laws  of  the  Individual  States  to  the 
contrary  notwithstanding;  and  that  if  any  State,  or  any  body 
of  men  in  any  State  shall  oppose  or  prevent  ye.  carrying  into 
execution  such  acts  or  treaties,  the  federal  Executive  shall  be 
authorized  to  call  forth  ye  power  of  the  Confederated  States, 
or  so  much  thereof  as  may  be  necessary  to  enforce  and  compel 
an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties." 
20  The  Pennsylvania  Packet  of  June  23  notices  the  decision, 
and  I  know  of  no  earlier  publication  in  regard  to  it,  but  private 
letters  were  probably  far  more  rapid,  and  some  of  the  friends 
of  Davie  were  likely  to  let  him  know  at  once  of  the  decision 
of  a  case  in  which  he  had  been  so  active.  Brinton  Coxe 
("Judicial  Power,"  etc.,  p.  266)  estimates  that  water  communi- 
cation between  Newbern  and  Philadelphia  might  be  made  then 
in  seven  or  eight  days,  under  favorable  circumstances.  See 
ante,  pp.  109- 121. 


<, 


134  THE  RELATION  OF  THE 

American  Doctrine  of  Judicial  Power,  and  Luther 
Martin  wrote21  in  1788,  in  a  public  controversy  with 
;  Ellsworth,  that  the  very  similar  proposal  which  he 
offered  to  the  Convention  on  July  1722  was  intended  by 
him  to  be  in  substitution  for  the  power,  which  the 
Convention  had  at  one  time  adopted,  of  a  negative 
by  Congress  on  the  laws  of  the  States,  which  he 
deemed  to  be  wholly  inadmissible. 

Here  is  most  persuasive  evidence  that  the  clause  so 
offered  by  Martin,  as  well  as  the  like  clause  of  the 
New  Jersey  Plan,  was  definitely  meant  as  an  adoption 
of  the  American  Doctrine,  which  prior  pages  have 
shown  had  made  such  strides  in  our  country  by  this 
,date,  and  there  is  further  circumstantial  evidence  of 
the  meaning  of  the  men  who  drafted  the  New  Jersey 
Plan. 

The  first  actual  decision  asserting  the  judicial  power 
had  been  rendered  in  New  Jersey  in  the  case  of  Holmes 
v.  Walton  in  1780.  It  was  decided  by  Brearly,  while 
Chief  Justice  of  the  State,  and  at  the  same  time  Wil- 
liam Paterson  was  Attorney  General;  William  Liv- 
ingston, Governor,  and  William  C.  Houston  was  the 
next  year  Clerk  of  the  Court.  The  Governor  was  ex- 
officio  Chancellor,  and  there  is  even  direct  evidence  (if 
any  be  needed)  that  he  was  conversant  with  the  doc- 

21  Farrand,  Vol.  Ill,  pp.  271-275. 

22  It  is  conceivable  that  Martin  referred  to  the  origin  of  clause 
6  of  the  New  Jersey  Plan,  but  there  is  nothing  to  show  who 
made  the  proposal  to  the  caucus  held  in  June,  which  became 
clause  6  of  the  New  Jersey  Plan  presented  to  the  Convention 
on  June  15,  while  Martin  did  himself  make  the  like  proposal 
to  the  Convention  on  July  17.  Infra,  pp.  137,  138. 


JUDICIARY  TO  THE  CONSTITUTION  135 

trine  of  Holmes  v.  Walton,23  and  it  is  at  least  highly 
likely  that  Houston24  also  knew  of  it.  These  four 
men, — Brearly,  Livingston,  Paterson,  and  Houston, — 
were  all  members  of  the  New  Jersey  delegation  in  the 
Federal  Convention,  and  as  such  it  is  clear,  from  what 
Martin  wrote,  that  some,  probably  all,  of  them  at- 
tended the  evening  meetings  of  the  caucus  that  of- 
fered the  New  Jersey  Plan  to  the  Convention  on  June 
15.  It  is  surely  impossible  to  imagine  that  they  failed 
to  bring  into  the  discussion  of  a  caucus  aiming  to  di- 
gest a  "purely  federal"  plan  that  idea  of  judicial 
power,  which  they  had  seen  exemplified  in  Holmes  v. 
Walton,  and  which  is  contained  in  clause  6  of  the  New 
Jersey  Plan. 

Nor  is  this  all.     Gerry,  who  proposed  the  meetings 
to  Martin,  was  the  first  member  of  the  Convention  to 

28  President  Austin  Scott's  article  on  "The  New  Jersey  Prece- 
dent," in  Vol.  IV,  Amer.  Historical  Review,  or  "Rutgers  College 
Publications,  No.  8."  I  am  indebted  to  this  article  for  nearly 
all  the  facts  relating  to  Holmes  v.  Walton. 

14  Houston  was  a  member  of  Congress  from  1779  to  1781,  when 
he  accepted  the  clerkship  of  the  Supreme  Court.  He  was 
therefore  in  Congress  at  the  time  of  the  decision  of  Holmes  v. 
Walton,  among  men  likely  to  hear  and  talk  of  it.  He  had  been 
in  the  army  during  the  war,  and  Professor  of  Mathematics  at 
Princeton,  but  studied  law  and  was  admitted  to  the  bar  in 
1781.  He  is  shown  by  the  pages  of  Elliot's  "Debates"  to  have 
been  present  in  the  Convention  at  its  opening,  and  on  July  23rd 
and  possibly  on  the  17th;  while  a  privately  printed  sketch  of 
him  by  Thomas  Allan  Glenn,  Norristown,  1903  (to  which  my 
attention  was  kindly  called  by  his  great-grandson,  William 
Churchill  Houston,  Esq.,  of  Philadelphia),  says  that  there  is 
every  reason  to  believe  that  he  was  constant  in  attendance. 
He  did  not  sign  the  constitution,  for  unknown  reasons,  but  did 
sign  the  report  of  the  commissioners.  Elliot's  mention  of  him 
on  July  23  shows  that  he  was  present  much  later  than  the 
presentation  of  the  New  Jersey  Plan. 


136  THE  RELATION  OF  THE 

refer  in  debate  (June  4)  to  the  judicial  power,  and 
nothing  can  be  plainer  than  his  words,  while  of  the 
others  who,  according  to  Martin,  attended  the  meet- 
ings, Mason  of  Virginia,  Martin  of  Maryland,  and 
Sherman25  of  Connecticut,  all  expressed  themselves 
the  same  way  long  before  the  adjournment  (July  17 
and  21)  ;  furthermore,  Ellsworth  and  Johnson  of  Con- 
necticut, Reed,  Bassett  and  Dickinson  of  Delaware, 
Charles  Pinckney  of  South  Carolina,  and  Few  and 
Baldwin  of  Georgia, — from  both  of  which  latter  two 
States  one  member  of  the  delegation  attended  the  meet- 
ings,— have  all  been  found  to  have,  at  least  not  very 
much  later  in  their  careers,  favored  the  same  view.26 
Thus,  Gerry,  Mason,  Martin,  Sherman,  and  three  (or 
perhaps  four)  of  the  five  members  from  New  Jersey, — 
at  least  seven  out  of  the  nine  who  almost  certainly 
attended  the  conferences, — were  then,  or  in  a  few 
days,  in  favor  of  the  judicial  review.    With  all  this  on 

"Other  language  used  by  Sherman  at  about  this  same  period, 
whatever  may  have  been  its  exact  connection,  shows  that  he 
had  a  full  understanding  of  judicial  control.  Among  his  papers 
was  found  a  document,  which  Prof.  Farrand  thinks  probably 
presents  the  ideas  of  the  Connecticut  delegation  in  forming  the 
New  Jersey  Plan,  while  others  have  thought  it  was  offered  to 
the  Convention.  It  proposed  to  grant  Congress  certain  addi- 
tional powers  and  among  these  the  power  "to  make  laws  binding 
on  the  people  of  the  United  States,  and  on  the  courts  of  law, 
and  other  magistrates  and  officers,  civil  and  military,  within 
the  several  States,  in  all  cases  which  concern  the  common  inter- 
ests of  the  United  States" :  and  it  also  resolved  that  "the  laws 
of  the  United  States  ought,  as  far  as  may  be  consistent  with 
the  common  interests  of  the  Union,  to  be  carried  into  execution 
by  the  judiciary  and  executive  officers  of  the  respective  States, 
wherein  the  execution  thereof  is  required."  Farrand,  Vol.  Ill, 
pp.  615,  616. 

MMelvin's  "Judicial  Bulwark,"  ut  ante,  pp.   185-193. 


JUDICIARY  TO  THE  CONSTITUTION  137 

the  record,  there  can  be  no  doubt  of  what  was  intended 
by  the  6th  clause  of  the  New  Jersey  Plan,  until  men 
engaged  in  a  serious  business  do  really  use  language 
to  hide  their  meaning. 

Little  favor  was,  however,  shown  by  the  Conven- 
tion to  the  New  Jersey  Plan,  and  the  clause  I  have  been 
considering  was  not  even  referred  to.  After  no  little 
debate,  which  was  at  times  pointed  enough,  the  plan 
as  a  whole  was  rejected  on  June  19,  with  only  three 
negatives  (New  York,  New  Jersey,  and  Delaware), 
and  the  Randolph  Plan,  as  reported  from  the  Com- 
mittee of  the  whole,  was  reported  without  change.27 

The  struggle  in  the  Convention  proper,  as  distin- 
guished from  the  Committee  of  the  whole,  began  now 
and  was  long  and  often  acrimonious.  It  does  not  need 
to  be  much  gone  into  here,  and  the  next  step  of  im- 
portance to  us  was  the  refusal  of  the  Convention  on 
July  17th,  by  three  ayes  to  seven  noes,  to  agree  to  the 
power  of  negativing  the  laws  of  the  States,  and  so 
on.28  The  vote  was  a  most  serious  defeat  for  the  mem- 
bers who  had  in  general  theretofore  directed  the  course 
of  events,  and  must  have  seemed  to  them  to  leave  the 
plan  shorn  of  a  chief  and  essential  feature.  They  were, 
doubtless,  for  a  time  at  a  loss  what  next  to  do,  and 
perhaps  there  was  no  little  conversation  out  of  order. 
If  so,  the  debates  are  silent  upon  the  subject,  and  their 
next  record  is  the  offer  by  Martin  of  (in  effect)  the  6th 
clause  of  the   New  Jersey   Plan.29    It  was   at  once 

"Farrand,  Vol.  I,  p.  322. 
"Ibid.,  Vol.  II,  p.  28. 

29  It  is  of  interest  to  know  how  Madison  entered  this  resolu- 
tion on  his  notes.     He  wrote  out  at  first  only  his  summation  of 


138  THE  RELATION  OF  THE 

adopted  nem.  con.,  without  reported  debate,  and  the 
Convention  went  on  to  other  parts  of  the  Constitu- 
tion. 

This  clause,  establishing  the  supremacy  of  the  laws 
of  the  Union  in  the  States  and  binding  the  State  judi- 
ciaries to  adhere  to  those  laws  in  their  decisions,  de- 
spite contrary  State  laws,  is  the  one  that  Martin  wrote 
the  next  spring, — in  his  controversy  with  Ellsworth 
in  the  public  papers, — he  had  offered  in  substitution 
of  the  plan  of  a  general  congressional  negative,  which 
he  "considered  totally  inadmissible."30 

Nor  is  evidence  lacking  that  as  leading  a  member  as 
Madison,  strongly  opposed  though  he  was  to  this  plan, 
recognized  much  the  same  thing,  and  began  at  once 
to  shape  the  Constitution  in  the  way  that  the  plan  of 
judicial  control  would  require.  The  very  next  day 
(July  18),  he  offered  a  clause  in  regard  to  the  jurisdic- 
tion of  the  courts  of  the  intended  government,  reading : 

That  the  jurisdiction  of  the  national  Judiciary  shall  ex- 
tend to  cases  arising  under  laws  passed  by  the  general 

the  substance,  taking  later  from  the  "Journal"  what  now  appears 
in  the  "Debates."  Prof.  Farrand  wrote  me  on  April  28,  191 1, 
that  Madison's  original  entry  was  in  the  following  form: 
"that  all  the  Legislative  acts  &  Treaties  made  by  virtue  of  the 
Articles  of  Union,  shall  be  the  supreme  law  of  the  States,  and 
as  such  shall  be  observed  by  their  Courts  &c."  See  ante,  pp. 
132,  133. 

30  See  Martin's  letter  of  March  19,  1788,  from  the  Maryland 
Journal  reproduced  in  Farrand's  "Records,"  Vol.  Ill,  pp.  286-295. 
Perhaps  the  present  writer  may  be  permitted  to  say  that  when, 
in  1899,  he  wrote  in  his  "Growth  of  the  Constitution"  (p.  284) 
of  Martin's  proposal  of  July  17  as  being  "intended  as  a  sub- 
stitute for  and  to  attain  the  same  end  as  the  clause  which  had 
just  been  defeated,"  he  had  no  knowledge  of  this  letter  of 
Martin's.     Farrand's   "Records"   had  not  then  been   published. 


JUDICIARY  TO  THE  CONSTITUTION  139 

Legislature  and  to  such  other  questions  as  involve  the 
National  peace  and  harmony. 

This  proposal  was  also  unanimously  adopted,  ap- 
parently without  debate.31 

If  there  could  be  any  doubt  in  regard  to  what  the 
Convention  was  aiming  at  in  all  this  matter,  it  is  cer- 
tainly removed  by  the  debate  of  July  21,  when  Wilson 
again  moved,  and  Madison  seconded,  a  resolution  that 
the  National  Judiciary  "should  be  associated  with  the 
Executive  in  the  Revisionary  power."  The  proposal 
was  discussed  at  some  little  length,  Luther  Martin  ob- 
jecting that  it  would  give  the  Judges  "a  double  nega- 
tive," as  the 

constitutionality  of  laws  .  .  .  will  come  before  the 
Judges  in  their  proper  official  character  [and]  in  this 
character  they  have  a  negative  on  the  laws. 

Mason  answered  Martin  that,  as  the  Constitution 
then  stood,  the  Judiciary  could  only  impede  the  opera- 
tion of  laws  in  one  case, — when  they  were  unconstitu- 
tional,— and  he  wished  them  to  be  able  to  prevent  every 
improper  law.  Numbers  of  members  spoke  of  the 
need  of  controlling  the  Legislature,  or  of  establishing 
a  "check"  upon  it  against  the  passage  of  laws  for 
paper  money,  the  "remission  of  debts"  or  other  "unjust 
measures,"  and  the  means  they  had  in  mind  was  the 
Judicial  Department.  The  term  "judicial  control" 
had  not  yet  come  into  vogue,  and  was  not  then  used; 
but  the  idea  was  very  plainly  in  the  mind  of  Mason 

31Farrand's  "Records,"  Vol.  II,  p.  46;  and  see  p.  39. 


1  / 


140  THE  RELATION  OF  THE 

and  others.  And  Mason  at  least  wanted  to  extend  this 
to  the  laws  of  the  Central  Power,  as  well  as  to  those 
of  the  States.  He  thought  it  as  necessary  in  the  for- 
mer case  as  in  the  latter.32 

In  all  this  matter,  Martin  was  far  from  aiming  at 
that  broad  power  of  control  over  State  legislation 
which  the  Convention  finally  established.  His  wish 
was  merely  to  make  the  supremacy  extend  to  the  lazvs 
of  the  States.  Their  constitutions  were  still  to  be 
paramount  to  the  laws  of  Congress,  and  the  whole 
matter  was  to  be  administered  by  the  State  Judiciary. 
He  wanted  no  inferior  Federal  Courts.33  He  was  ac- 
cordingly opposed  when,  on  July  18,  power  was  con- 
ferred to  create  such  tribunals ;  and  evidently  still  more 
so,  when  the  Convention  went  on  and  forged,  blow  by 
blow,  that  broad  system  of  Federal  supremacy  which 
has  almost  completely  curbed  the  States  from  viola- 
tions of  the  rights  of  the  Central  Power  in  domestic 
as  well  as  international  relations. 

Some  writers  of  modern  days  have  drawn  the  most 
remarkable  conclusions  from  the  rejection  on  July  iy 
of  the  plan  of  a  Council  of  Revision,  with  the  Judi- 
ciary forming  a  part  of  it.  To  them  the  action  was 
the  refusal  to  the  Judiciary  of  power  to  hold  a  law 
unconstitutional.  They  probably  did  not  know  at  the 
time  they  so  wrote  that  Martin's  proposal  binding  the 
State  tribunals  to  follow  in  their  decisions  authorized 
Federal  laws,  despite  contrary  State  ones,  was  ex- 

33  Farrand's  "Records,"  Vol.  II,  pp.  73-80.     Melvin's  "Judicial 
Bulwark,"  etc.,  pp.  177-181. 
"Letter  in  Farrand,  Vol.  Ill,  pp.  286-295. 


JUDICIARY  TO  THE  CONSTITUTION  141 

pressly  said  by  him  to  have  been  offered  in  substitution 
for  the  proposal  rejected,  and  they  failed  to  observe 
certain  other  matters  of  a  high  degree  of  importance. 
Some  few  days  after  Martin's  proposal  had  been 
agreed  to,  and  when  the  judicial  method  of  curbing 
unauthorized  State  laws  was  thus  in  essence  contained 
in  the  Constitution,  it  has  been  seen  that  leading  mem- 
bers (Wilson  and  Madison)  none  the  less  again  moved 
on  July  21  to  add  the  Judiciary  to  the  Executive  in  the 
revisionary  power.  And  we  shall  find  that  the  advo- 
cates of  this  general  form  of  a  Council  of  Revision 
did  not  even  rest  here,  but  twice  again  showed  con- 
clusively that  they  meant  by  this  plan  something  quite 
different  from  the  power  to  hold  laws  unconstitutional. 
On  July  26  the  Convention  referred  all  the  resolu- 
tions they  had  agreed  upon  to  a  Committee  of  De- 
tail, to  draw  up  a  Constitution  in  accordance  there- 
with. One  of  the  resolutions  (the  7th)  was  Martin's 
proposal  of  July  17,  while  the  20th  read 

That  the  legislative,  executive  and  judiciary  powers, 
within  the  several  states,  and  of  the  national  government, 
ought  to  be  bound,  by  oath,  to  support  the  Articles  of 
Union. 

Pinckney's  plan  and  the  New  Jersey  Plan  were 
also  referred.34 

This  Committee  must  have  worked  tirelessly,  for 
their  task  was  an  arduous  one,  but  on  August  6  they 
reported  a  draft  of  a  Constitution.  In  it  was  incor- 
porated, almost  in  the  same  words,  Martin's  proposal 
84  Elliot's  "Debates,"  Vol.  V,  pp.  375-376. 


142  THE  RELATION  OF  THE 

of  July  17th  as  Article  VIII,  while  the  20th  resolution 
recited  immediately  above  became  Article  XX.  The 
powers  of  Congress  were  detailed  in  Article  VII,  and 
contained  the  well-known  general  clause  "to  make 
all  laws  that  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,"  while  Article 
XI,  relating  to  the  Judiciary,  carried  on  the  16th  reso- 
lution referred,  by  the  provision  (of  vast  moment  in 
our  discussion  and  showing  plainly  the  understanding 
and  the  intent  of  the  Committee  of  Detail)  that  "the 
jurisdiction  of  the  Supreme  Court  shall  extend  to  all 
cases  arising  under  laws  passed  by  the  legislature  of 
the  United  States."35 

It  sometimes  happens  that  a  proposal  that  never 
comes  to  maturity  throws  a  very  strong  light  on  a 
complicated  proceeding.  So  it  was  here,  I  think.  Ran- 
dolph's course  in  regard  to  the  Constitution  was  by  no 
means  free  from  ground  for  criticism,  but  he  was 
among  the  leading  members,  and  very  active.  As  one 
of  the  Committee  of  Detail,  he  drew  up  in  his  own 
handwriting  a  pretty  complete  outline  of  a  form  of 
Constitution,  and  in  this  he  originally  inserted,  at 
the  end  of  the  clause  detailing  the  Congressional  pow- 
ers, a  provision  that  would  alone  show  his  intentions 
as  to  the  function  of  the  Judiciary  in  regard  to  un- 
constitutional laws  but  which,  when  coupled  with  his 
proposal  earlier  in  the  Convention,36  leaves  absolutely 

"Elliot's  "Debates,"  Vol.  V,  pp.  376-381.  Farrand,  Vol.  II, 
pp.  177-189.  The  general  words  of  the  16th  resolution  were 
denned  and  expanded,  but  what  is  quoted  in  the  text  contains 
the  portions  of  moment  here. 

"Ante,  pp.  130,  131. 


JUDICIARY  TO  THE  CONSTITUTION  143 

no  doubt  as  to  them  nor,  I  submit,  as  to  their  currency. 
As  he  wrote : 

All  laws  of  a  particular  State  repugnant  hereto  shall 
be  void;  and  in  the  decision  thereon,  which  shall  be 
vested  in  the  supreme  court,  all  incidents,  without  which 
the  general  principle  cannot  be  satisfied,  shall  be  consid- 
ered as  involved  in  the  general  principle. 

And  then,  as  if  to  show  to  a  doubting  later  gen- 
eration what  he  meant,  he  cancels  these  words  and 
writes  over  them,  "insert  the  eleventh  article."37  This 
was  the  article  relating  to  the  judicial  power  reported 
by  the  Committee  of  Detail,  which  expressly  extended 
the  jurisdiction  of  the  Supreme  Court  "to  all  cases 
arising  under  laws  passed  by  the  legislature  of  the 
United  States." 

Hamilton,  too,  is  plainly  on  record  as  having  had 
Judicial  Control  in  mind  as  a  desideratum  for  us. 
Not  only  would  his  connection  with  Rutgers  v.  Wad- 
dington  render  this  likely,  but  about  the  close  of  the 
Convention  he  communicated  to  Madison  (not  to  the 
Convention)  "a  paper  which  he  said  delineated  the 
Constitution  which  he  would  have  wished  to  be  pro- 
posed by  the  Convention :  He  had  stated  the  principles 
of  it  in  the  course  of  the  deliberations."  38  Article 
VII  of  this  draft  of  a  Constitution  treated  of  the 
powers  of  the  Legislature,  and  provided  in  its  6th 
clause  that 

"Farrand,    Vol.    II,   p.    144.      Meigs's    "Growth   of    the    Con- 
stitution," p.  285. 
^Farrand,  Vol.  Ill,  pp.  619-630. 


144  THE  RELATION  OF  THE 

the  laws  of  the  United  States,  and  the  treaties  which  have 
been  made  under  the  articles  of  the  confederation,  and 
which  shall  be  made  under  this  Constitution  shall  be  the 
supreme  law  of  the  Land,  and  shall  be  so  construed  by 
the  Courts  of  the  several  States. 


But  the  advocates  of  a  Council  of  Revision,  with 
the  Judiciary  as  a  part  of  it,  were  not  even  at  this 
late  day  satisfied;  and  though  the  plan  reported  pro- 
vided plainly  for  the  judicial  annulment  of  unconstitu- 
tional State  Laws,  yet  Madison  once  more,  on  August 
15,  moved  an  amendment  embodying  a  Judicial  Coun- 
cil of  Revision,  with  the  modification  that  the  judges 
of  the  Supreme  Court  should  separately  consider  all 
laws,  and  their  separate  assent  be  necessary  as  well  as 
that  of  the  Executive.  The  proposal  was  soon  nega- 
tived by  3  ayes  to  8  noes,  but  Gouverneur  Morris 
wished  that  some  such  check  could  be  agreed  to,  and 
suggested  an  absolute  negative  in  the  Executive.  The 
Convention  was,  however,  growing  very  impatient, 
and  members  complained  of  the  endless  delays. 

There  is  some  appearance,  even  after  this,  of  a  de- 
sire to  adopt  in  part  the  wishes  of  Madison  and  his 
friends,  and  proposals  were  made  and  referred  to 
the  Committee  of  Detail  for  a  Council  of  State,  of 
which  the  Chief  Justice  should  be  part,  and,  again, 
that  the  Executive  might  require  the  opinion  of  the 
Supreme  Court  upon  important  matters.  The  Com- 
mittee of  Detail  reported,  too,  on  August  22  a  clause 
to  create  a  Privy  Council,  of  which  the  Chief  Justice 


JUDICIARY  TO  THE  CONSTITUTION  145 

of  the  Supreme  Court  should  be  one  member ;  but  the 
proposal  was  not  carried  out.39 

All  these  efforts  to  bring  the  Judiciary  in  one  way 
or  another  into  the  enactment  of  laws  hence  failed, 
and  it  is  apparent  that  the  Convention  had  finally  set- 
tled itself  upon  the  adoption  of  the  Judicial  method, 
by  which  the  enforcement  of  laws  of  the  States  vio- 
lating the  Federal  power  was  to  be  stopped  by  the 
Judiciary,  after  their  enactment  by  the  Legislatures. 
So  the  Convention  did  precisely  what  it  was  natural 
for  the  members  to  do  under  these  circumstances. 
They  went  on  to  perfect  the  plan  they  had  determined 
upon,  precisely  as  it  has  already  been  seen  40  they  had 
begun  to  do  under  the  leadership  of  Madison  on  July 
18.  On  August  23  Rutledge  moved  to  amend  the 
provision  (then  Article  VIII,  now  Article  VI,  Clause 
2)  in  regard  to  the  supremacy  of  the  laws  of  the 
Union,  and  the  judges  of  the  several  States  being 
bound  thereby  in  their  decisions,  by  prefixing  the 
words  "This  Constitution  and"  to  the  words  the  laws 
of  the  United  States,  and  so  on,  so  that  the  provisions 
of  the  Constitution  itself  should  equally  be  paramount 
to  State  laws.  The  amendment  was  agreed  to  netn. 
con.41 

There  remained  one  other  clause  of  vital  moment  in 

this  same  connection.     It  was  not  enough  to  the  legal 

confraternity  to  have  provided  that  the  United  States 

Constitution  and  laws  should  be  supreme.     The  juris- 

89  Farrand,  Vol.  II,  pp.  328,  329,  34*,  342,  3^71  or  Elliot,  Vol.  V, 
pp.  442,  445,  446,  462. 

40  Ante,  pp.   138,   139. 

41  Farrand,  Vol.  II,  p.  389,  or  Elliot,  Vol.  V,  p.  467. 


146  THE  RELATION  OF  THE 

diction  of  the  courts  must  likewise  be  expressly  so  ex- 
tended, in  order  to  make  the  meaning  perfectly  clear 
and  avoid  the  possibility  of  some  over-refined  dis- 
tinction undoing  what  was  intended.  Therefore, 
when  the  clause  concerning  the  jurisdiction  of  the 
Supreme  Court  (then  Article  XI,  Section  3,  now  Arti- 
cle III,  Section  2)  came  up  on  August  27,  Dr.  Johnson 
moved  to  insert  here  also  the  words  "This  Constitution 
and  the"  before  the  word  "laws."  It  was  plainly 
meant  ex  majore  cautela,  and  to  round  out  the  instru- 
ment they  were  drafting,  by  expressly  extending  the 
jurisdiction  of  the  courts  to  cover  precisely  the  same 
ground  to  which  the  supremacy  of  the  authority  of  the 
Union  had  already  been  extended,  so  that  there  should 
be  a  plain  and  palpable  authorization  to  the  Courts  to 
hear  and  determine  such  cases.  And,  as  if  in  order 
to  make  this  intent  still  more  clear,  the  debates  tell  us 
that  Madison 

doubted  whether  it  was  not  going  too  far,  to  extend  the 
jurisdiction  of  the  court  generally  to  cases  arising  under 
the  Constitution,  and  whether  it  ought  not  to  be  limited 
to  cases  of  a  judiciary  nature.  The  right  of  expounding 
the  Constitution  in  cases  not  of  this  nature,  ought  not  to 
be  given  to  that  department. 

The  motion  of  Dr.  Johnson  was  agreed  to  nem.  con., 
it  being  generally  supposed  that  the  jurisdiction  given 
was  constructively  limited  to  cases  of  a  judiciary  na- 
ture.42 

Words  could  hardly  be  plainer,   and   particularly 
Madison's  doubt  and  the  reasons  given  for  the  unani- 
"Farrand,  Vol.  II,  p.  43°. 


JUDICIARY  TO  THE  CONSTITUTION  147 

mous  action  of  the  Convention  show,  beyond  cavil,  that 
the  members  then  present  had  by  this  time  come  gener- 
ally to  realize  that  the  system  they  were  aiming  to 
establish  was  intended  to  put  upon  the  Judiciary  the 
function  of  weeding  out  by  their  decisions  at  least  all 
such  laws  of  the  States  as  should  be  found  to  be  in 
violation  of  the  Federal  powers. 

These  two  clauses  (Article  III,  Section  2,  and  Arti- 
cle VI,  Section  2,  of  the  United  States  Constitution) 
were  well  called  by  Brinton  Coxe43  the  "twin-texts" 
of  the  Constitution,  and  it  was  upon  them  that  he  relied 
to  demonstrate, — in  the  portion  of  his  work  which  he 
did  not  live  to  finish, — that  the  Constitution  contains 
express  texts  providing  for  judicial  competency  to 
decide  questioned  legislation  to  be  constitutional  or  un- 
constitutional, and  to  hold  it  valid  or  void  accordingly. 
That  it  does  this,  in  so  far  as  concerns  legislation  of 
the  States  in  violation  of  the  United  States  Constitu- 
tion, is  almost  too  plain  for  doubt,  and  there  is  the 
most  persuasive  evidence  that  it  was  equally  meant  to 
weed  out  unconstitutional  congressional  legislation. 

In  this  connection,  one  fact  is  vital  to  be  ever  borne 
in  mind :  By  this  date  a  number  of  judicial  decisions 
had  been  rendered  in  the  States,  holding  void  State 
laws  which  conflicted  with  their  constitution,  and 
these  had  been  recognized  and  approved  by  men  of 
note  throughout  the  country  to  such  an  extent  that, 
it  may  fairly  be  said,  the  principle  was  well  advanced 
towards  general  acceptance.     And  this  principle  did 

48  "Judicial  Power  and  Unconstitutional  Legislation,"  "Intro- 
ductory Note,"  pp.  III-VIII. 


148  THE  RELATION  OF  THE 

not  depend  upon  anything  peculiar  in  the  nature  of 
the  State  governments,  but  extended  in  reason  to  the 
laws  of  any  sovereignty, — at  least,  to  all  such  as  had 
a  written  constitution.  These  decisions  were,  more- 
over, known  well  enough  to  many  leading  members  44 
of  the  Convention,  and  of  course  they  passed  this 
knowledge  on  to  any  of  their  colleagues  who  may  have 
been  less  well  informed.  Such  is  the  very  purpose  of 
discussion  and  debate. 

And  there  is  no  lack  of  other  evidence  of  their 
actual  intentions.  The  proposals  in  Congress,  in  1787, 
of  what  Brinton  Coxe  called  "the  identical  law"  was 
not  a  sudden  outburst  from  a  clear  sky  but  the  cul- 
mination of  an  effort  to  curb  the  States,  which  had 
been  making  in  Congress  since  at  least  1783.  It  can- 
not be  doubted  that  Hamilton,  Madison,  and  Ells- 
worth, who  were  of  the  Committee  of  Congress  upon 

44  In  my  article  of  1885  (Atner.  Law  Review,  Vol.  XIX,  p.  184) 
I  named  Gerry,  Gouverneur  Morris,  Sherman,  Wilson,  George 
Mason,  and  Luther  Martin  as  commenting  with  approval  upon 
the  doctrine  in  the  Convention,  and  Ellsworth,  Davie,  and  Ran- 
dolph, members  of  the  Convention,  as  doing  the  same  thing  in 
the  Ratifying  Conventions.  Since  then  this  list  has  been  greatly 
lengthened  by  Prof.  Beard  in  his  "Supreme  Court  and  the 
Constitution,"  and  in  Mr.  Melvin's  "Judicial  Bulwark  of  the 
Constitution"  (Atner.  Polit.  Science  Review,  Vol.  VIII,  pp.  185- 
193).  Mr.  Melvin  sums  up:  "of  the  fifty-five  actual  members 
of  the  federal  convention  some  thirty-two  to  forty  of  them, 
that  is  two-thirds  of  the  Convention  and  including  nearly  every 
influential  member  upheld  or  accepted  the  right  of  the  courts," 
etc.  I  cannot  but  think  that  many  of  the  names  so  included, 
are  included  on  evidence  of  actions  or  opinions  too  much  later 
in  date,  to  prove  that  such  was  their  opinion  in  1787,  but  these 
gentlemen  have  added  enough  to  my  list, — all  of  leading  or 
prominent  men, — to  make  it  formidable  and  far  longer  than  I 
knew  to  be  the  case. 


JUDICIARY  TO  THE  CONSTITUTION  149 

the  subject  in  that  year,45  continued  to  watch  the  gen- 
eral subject,  and  when  the  Courts  of  the  States  began 
of  their  own  accord  to  make  decisions  holding  void 
State  laws  that  violated  the  Federal  authority,  they  or 
some  of  their  colleagues  doubtless  suggested  that  ap- 
plication of  these  decisions  which  was  molded  into 
the  proposed  identical  law.  This  law  was  recom- 
mended at  a  meeting  of  Congress,  when  all  the  States 
except  New  Hampshire  were  present,  and  when  Rhode 
Island  was  represented  by  Varnum,  of  Trevett  v. 
Weeden.  It  received  the  votes  of  King,  Johnson, 
Madison,  Blount,  Few  and  Pierce, — all  members  of 
the  coming  Convention.46 

In  regard  to  Madison's  understanding  that  the  Con- 
vention intended  to  adopt  the  Judicial  Method  of 
voiding  unauthorized  State  laws,  the  evidence  is  abso- 
lutely overwhelming.  He  was  disappointed  at  the 
refusal  to  adopt  the  Council  of  Revision  plan,  with 
power  to  veto  State  laws  in  limine,  and  wrote  to 
Jefferson  almost  contemporaneously  (October  24, 
1787),  that 

It  may  be  said  that  the  Judicial  authority,  under  our 
new  system,  will  keep  the  States  within  their  proper  lim- 
its, and  supply  the  place  of  a  negative  on  their  laws.  The 
answer  is,  that  it  is  more  convenient  to  prevent  the  pas- 
sage of  a  law  than  to  declare  it  void  after  it  is  passed.47 

And  again  in  the  Virginia  Ratifying  Convention, 

he  used  language  showing  plainly  the  same  understand- 

45  Ante,  p.  92. 

48  Melvin's  "Judicial  Bulwark,"  etc.,  pp.   173,   174. 

4TFarrand,  Vol.  Ill,  pp.  131-136.     See  ante,  pp.  128,  129. 


150  THE  RELATION  OF  THE 

ing,  that  the  Judiciary  were  to  curb  the  States  from 
violating  the  federal  powers.48 

His  reminiscences  in  later  life  are,  if  possible,  even 
clearer  and  to  precisely  the  same  effect.  Perhaps,  the 
most  conclusive  is  contained  in  his  letter  of  183 1  to 
N.  P.  Trist,  in  which  he  wrote : 

The  obvious  necessity  of  a  control  on  the  laws  of  the 
States,  so  far  as  they  might  violate  the  constitution  and 
laws  of  the  United  States,  left  no  option  but  as  to  the 
mode.  The  modes  presenting  themselves,  were  (1)  a 
veto  on  the  passage  of  the  State  laws.  (2)  A  Congres- 
sional repeal  of  them.  (3)  A  Judicial  annulment  of 
them.  The  1st  though  extensively  favored,  at  the  outset, 
was  found  on  discussion,  liable  to  insuperable  objections, 
arising  from  the  extent  of  the  Country  and  the  multi- 
plicity of  State  laws.  The  2d  was  not  free  from  such 
as  gave  a  preference  to  the  third  as  now  provided  by 
the  Constitution.49 

When  so  leading  a  man  as  Madison,  whose  favorite 
idea  in  the  matter  had  been  defeated,  wrote  in  this 
way  of  the  action  of  the  Convention, — and  when  we 
remember  the  crying  need  of  a  means  to  annul  State 
laws  in  violation  of  the  Federal  authorities,  as  well 
as  the  course  of  the  Convention  in  the  connection,  and 

48  Elliot,  Vol.  Ill,  p.  532. 

"Farrand's  "Records,"  Vol.  Ill,  pp.  516,  517.  See  also  the 
same  ideas  expressed  in  other  words  in  letter  of  October  21, 
x833,  to  W.  C.  Rives,  ibid.,  pp.  521-524,  and  in  his  "Introduction 
to  the  Debates,"  ibid.,  pp.  539,  etc.,  where  he  writes  that  "instead 
of  the  proposed  negative,  the  objects  of  it  were  left  as  finally 
provided  for  in  the  constitution." 


JUDICIARY  TO  THE  CONSTITUTION  151 

the  opinions  of  other  men  of  great  prominence,50 — 
it  is  not  possible  to  doubt  that  the  "Judicial  Method" 
was  definitely  adopted  by  the  Framers  for  this  purpose. 

But  this  was  not  all.  What  of  laws  of  Congress 
unauthorized  by  the  terms  of  the  Constitution?  Can 
it  be  supposed  for  a  moment  that  those  very  careful 
men  forgot  this  point,  or  actually  meant  to  leave  each 
Congress  free  in  its  uncontrolled  discretion  to  interpret 
the  instrument  to  mean  what  that  body  might  at  the 
moment  think  expedient?  If  any  one  believes  this 
possible,  he  can  have  little  knowledge  of  the  jealousy 
of  power  which  was  then  almost  universally  prevalent. 
Had  the  Constitution  been  supposed  to  carry  this 
meaning,  there  can  be  no  shadow  of  doubt  but  that 
the  smaller  States  would  all  have  instantly  rejected 
the  instrument,  rather  than  submit  themselves  to  the 
absolute  power  of  the  larger  States.  The  possibility 
of  this  interpretation  was  seen  to  some  extent,  and  the 
fear  of  it  was  one  cause  of  alarm,  but  the  many  an- 
swers made  in  the  Federalist  and  other  publications, 
as  well  as  in  the  Ratifying  Conventions,  were  in  gen- 
eral apparently  found  satisfactory. 

The  subject  might  almost  be  left  here,  as  it  seems 
to  me,  and  the  intent  that  the  judicial  power  should 
extend  also  to  laws  of  Congress  unauthorized  by  the 
Constitution,  be  rested  on  general  inference  from  the 
surrounding  circumstances, — the  wide  recognition  of 
the  like  power  throughout  the  States,  the  long  and 
painful  labor  devoted  to  defining  the  powers,  the  fre- 

50  See,    for    example,    Randolph's    and    Hamilton's    proposals, 
ante,  pp.  130,  142-144. 


152  THE  RELATION  OF  THE 

quent  insertion  of  clauses  that  specific  things  should 
not  be  done  by  the  proposed  Government,  the  putting 
of  all  these  provisions  in  the  intended  treble  strong 
brass  of  a  permanent  writing,  the  creation  of  great 
and  independent  Departments  of  Government  bound 
by  solemn  oath  to  obey  the  Constitution,  and  the 
palpable  fact  that  without  some  means  of  curbing 
Congress,  sure  to  be  often  swept  from  its  anchorage 
by  wild  gusts  of  popular  passion,  the  deepest  discon- 
tents would  soon  prevail  in  many  parts  of  the  country, 
and  the  new  experiment  end  ere  long  in  blood,  failure, 
and  revolution. 

But  some  writers  of  modern  days  by  no  means  ad- 
mit this  general  view;  and  it  is  hence  necessary  to 
follow  the  subject  further  and  see  what  other  evidence 
of  the  intent  can  be  found. 

The  Constitution  was  to  be  the  supreme  law  of  the 
land,  but  this  supremacy  was  only  extended  to  such 
of  the  laws  of  Congress  as  should  be  made  in  pursu- 
ance thereof.  As  Hamilton  had  put  it  in  No.  33  (31) 
of  the  Federalist: 

It  will  not  follow  from  this  doctrine  that  acts  of  the 
larger  society  which  are  not  pursuant  to  its  constitutional 
powers,  .  .  .  will  become  the  supreme  law  of  the  land. 
...  It  [the  constitution]  expressly  confines  this  suprem- 
acy to  laws  made  pursuant  to  the  constitution. 

And  Madison  wrote  in  No.  44  (43)  of  the  same 
great  commentary  that,  if  Congress  should  misconstrue 
their  authority  to  pass  laws  necessary  and  proper,  the 
result  would  be 


JUDICIARY  TO  THE  CONSTITUTION  153 

the  same  as  if  they  should  misconstrue  or  enlarge  any- 
other  power  vested  in  them  .  .  .  the  same  in  short  as  if 
the  State  Legislatures  should  violate  their  respective  con- 
stitutional authorities?1  In  the  first  instance,  the  success 
of  the  usurpation  will  depend  on  the  executive  and  judi- 
ciary departments  which  are  to  expound  and  give  effect 
to  the  legislative  acts. 

To  the  same  effect,  the  future  great  Chief  Justice 
said  in  the  Virginia  Ratifying  Convention,52 

Can  they  go  beyond  the  delegated  powers?  If  they 
were  to  make  a  law  not  warranted  by  any  of  the  powers 
enumerated,  it  would  be  considered  by  the  judges  as  an 
infringement  of  the  Constitution  which  they  are  to  guard. 
They  would  not  consider  such  a  law  as  coming  under 
their  jurisdiction.  They  would  declare  it  void.  ...  To 
what  quarter  will  you  look  for  protection  from  an  in- 
fringement of  the  Constitution,  if  you  will  not  give  the 
power  to  the  judiciary.  There  is  no  other  power  that 
can  afford  such  a  protection. 

Iredell,  too,  wrote  to  precisely  the  same  effect  in 
1787,  "It  really  appears  to  me,  the  exercise  of  the 
power  [by  the  Judiciary]  is  unavoidable,  the  Consti- 
tution not  being  a  mere  imaginary  thing."  53 

61  Italics  mine. 

"Elliot,  Vol.  Ill,  p.  553.  It  is  interesting  to  remember  that 
Marshall  had  studied  law  with  Wythe,  who  took  part  in  Comm. 
v.  Caton  in  1782,  and  wrote  in  his  opinion :  "Nay,  more,  if  the 
whole  Legislature"  should  attempt  to  overleap  the  bounds  pre- 
scribed by  the  Constitution,  he  would  meet  them  from  his  seat 
and  say  "hither  shall  you  go,  but  no  further."     See  ante,  p.  64. 

"Reply  to  letter  of  Spaight  strongly  criticising  the  decision 
in  Bayard  v.  Singleton,  quoted  more  at  length,  ante,  p.  121. 


154  THE  RELATION  OF  THE 

It  has  been  said  that  it  was  fairly  well  established 
by  this  time  in  the  States,  that  a  law  violating  the 
State  Constitution  was  void,  and  would  be  so  held  by 
their  Courts.  And  not  only  was  the  analogy  of  like 
laws  of  Congress  violating  the  United  States  Consti- 
tution perfect,  but  the  need  for  a  cure  was  perhaps 
even  stronger  in  the  latter  case,  for  such  an  unauthor- 
ized law  would  otherwise  violate  the  rights  of  thirteen 
States.  If  a  written  Constitution,  with  all  its  so 
laboriously  drawn  authorities  and  limitations,  was  not 
to  be  from  the  start  a  vain  thing,  with  no  defense 
against  the  encroachments  of  Power,  which  the  men 
of  that  day  so  much  feared,  some  method  must  be 
found  in  the  system  to  protect  the  instrument  from 
such  violations;  and  Marshall,  Madison,  Hamilton, 
and  Iredell  have  all  been  shown  to  have  pointed  out, — 
before  the  Constitution  went  into  effect, — the  Judicial 
Department  as  the  one  to  exercise  this  function. 

In  addition  to  all  this  contemporaneous  evidence,  it 
is  curious  to  find  that  in  a  very  few  years,  when  the 
general  subject  was  discussed  at  the  time  of  the  Pen- 
sion Cases,  it  was  pointed  out 54  that,  unless  our 
Courts  were  to  exercise  the  power  in  question,  there 
was  no  agency  in  our  system,  short  of  a  Constitutional 
Convention,  that  could  prevent  the  carrying  out  of 
unconstitutional  laws. 

Calhoun,  too,  who  fully  believed  in  the  general 
power  of  the  courts  as  to  unconstitutional  laws,  while 
rejecting  some  of  its  apparent  results  or  derivatives, 
said  much  the  same  thing  in  other  words  many  years 

"The  Philadelphia  Aurora,  of  April  20,  1792,  quoted  post, 
p.  182. 


JUDICIARY  TO  THE  CONSTITUTION  155 

later.  In  his  speech  of  February  15  and  16,  1833,  on 
the  Force  Bill,  made  in  the  Senate  when  the  contest 
over  Nullification  was  still  most  acute,  after  first  de- 
nying that  the  power  was  conferred  upon  the  Supreme 
Court  by  the  Constitution,  he  said: 

I  do  not  deny  that  it  possesses  the  right ;  but  I  can  by 
no  means  concede  that  it  was  derived  from  the  Constitu- 
tion. It  had  its  origin  in  the  necessity  of  the  case. 
Where  there  are  two  or  more  rules  established,  one  from 
a  higher,  the  other  from  a  lower  authority,  which  may 
come  into  conflict  in  applying  them  to  a  particular  case, 
the  judge  cannot  avoid  pronouncing  in  favor  of  the  su- 
perior against  the  inferior.55 

Again,  in  the  treatment  of  the  general  subject  by  the 

Convention,  the  laws  of  Congress  were  coupled  in  the 

same  clause  with  the  laws  of  the  States,  and  the  same 

result  would  hence  naturally  follow  as  to  both.     In- 

56  "Works,"  Vol.  II,  pp.  201-203.  Some  writers  have  thought 
very  differently  of  Calhoun's  opinions  on  this  subject,  but  they 
have  probably  been  misled  by  his  refusal  to  admit  that  a  State 
could  be  concluded,  as  to  the  meaning  of  the  constitution,  by  a 
decision  of  the  Supreme  Court  in  an  ordinary  case  between 
parties.  He  would  doubtless  also  have  denied,  with  the  State 
Rights  School  in  general,  the  right  to  an  appeal  to  the  Supreme 
Court  in  any  case  in  which  a  State  was  a  party.  The  decision 
of  the  federal  courts  in  some  question  arising  under  Nullifica- 
tion, might  have  been  very  inconvenient  to  the  South  Carolina 
leaders,  and  at  the  session  of  1830-31  Warren  R.  Davis  (a  close 
political  friend  of  Calhoun)  moved  to  repeal  that  portion  of 
the  Judiciary  Act  of  1789,  which  gives  a  right  of  appeal  to  the 
Supreme  Court  of  the  United  States  from  the  decree  of  a 
State  Supreme  Court, — but  which  had  always  been  opposed  by 
the  ultra  State  Rights  School.  The  motion  was  lost,  but  was 
hardly  made  without  Calhoun's  consent,  despite  the  fact  that  he 
thought  it  went  very  much  beyond  Nullification,  "Life  of  Cal- 
houn," by  William  M.  Meigs,  Vol.  I,  pp.  420,  421. 


156  THE  RELATION  OF  THE 

deed,  Madison  has  been  just  shown  to  have  said  (abso- 
lutely assuming  the  voidness  of  State  laws  in  viola- 
tion of  the  State  Constitution)  that,  if  Congress  should 
exceed  its  authority  and  pass  unauthorized  laws,  the 
same  result  would  follow  as  did  when  the  State  Legis- 
latures violated  their  constitution.  That  the  invalidity 
of  unauthorized  laws  was  made  plainer  in  the  new 
instrument, — and  indeed  absolutely  plain  as  to  State 
laws  which  should  violate  the  United  States  Constitu- 
tion,— was  owing  to  the  fact  that  such  unauthorized 
State  laws  and  their  avoidance  constituted  one  of  the 
chief  points  of  importance  in  the  minds  of  the 
Framers,  and  had  been  a  large  factor  in  leading  to  the 
Convention. 

But  the  adoption  of  the  Judicial  Method  even  as 
to  these  State  laws  could  hardly  possibly  have  been 
thought  of  had  not  the  judges  in  a  number  of  States 
already  laid  down  the  general  principle  that  a  law  in 
violation  of  a  written  constitution  was  void,  and  would 
be  so  held  by  the  Courts  of  the  particular  jurisdiction 
in  a  judicial  case  brought  before  them.  This  great 
principle  was  used  by  the  Convention  to  attain  their 
end  as  to  State  laws  unauthorized  under  the  Federal 
Constitution ;  but  it  had  precisely  the  same  application 
to  laws  of  Congress  unauthorized  under  the  new  Con- 
stitution as  it  had  to  the  laws  of  one  of  our  States 
unauthorized  under  its  Constitution. 

The  Convention  then  enacted,  in  the  plainest  words, 
the  specific  point  that  State  laws  in  violation  of  the 
Federal  functions  were  to  be  held  void  by  the  Courts, 
thus  using  the  new  principle  to  get  rid  of  offending 


JUDICIARY  TO  THE  CONSTITUTION  157 

State  laws,  but  it  left  a  little  to  inference  from  the 
well-known  growth  of  Judicial  Power  in  our  country 
as  to  Unconstitutional  Legislation,  the  other  point  that 
unauthorized  laws  of  Congress  should  (to  paraphrase 
Madison's  language  quoted  above)  meet  with  the  same 
treatment  as  did  those  of  the  State  Legislatures  when 
they  violated  their  respective  constitutional  authorities. 


CHAPTER  VIII 

THE  CONSTITUTION   BEFORE  THE  PEOPLE,  AND  IN   THE 
RATIFYING  CONVENTIONS 

The  term  "Judicial  Power"  has  been  used  by  the 
writer  in  the  preceding  chapter  with  reference  to  its 
adoption  by  the  Convention  as  the  means  of  stopping 
unconstitutional  laws.  It  is  a  term  that  was  not  used 
in  that  sense  at  the  time,  so  far  as  I  know;  but  the 
idea  is  plainly  to  be  found  in  speeches  in  the  Conven- 
tion, and  in  the  Federalist  and  other  writings  of  lead- 
ing men  at  about  that  date.  The  idea  was  already 
becoming  formulated,  or  integrated,  and  was  in  time 
crystallized  in  that  expression.  Madison  has  been 
shown  to  have  used  in  several  instances  language  that 
plainly  imported  this  power,  and  Hamilton  did  the 
same  thing  in  No.  78  and  other  numbers  of  the  Fed- 
eralist. 

Many  writers  have  said  with  truth  that  a  point  of 
first  importance  in  interpreting  the  Constitution  is  to 
find  out  what  the  Ratifying  Conventions  understood 
any  disputed  clause  to  mean;  for  it  was  their  action 
that  breathed  life  into  the  instrument.  As  to  many 
such  clauses,  there  is,  of  course,  great  doubt;  portions 
of  the  instrument  have  ever  been  differently  under- 
stood by  different  writers;  but  in  relation  to  the  in- 

158 


JUDICIARY  AND  CONSTITUTION      159 

tended  power  of  the  Judiciary  under  the  new  system 
to  hold  unconstitutional  State  laws  violating  the 
Federal  authorities,  it  is  difficult  to  see  how  there  can 
be  any  question. 

And  the  same  right  applies  to  laws  of  Congress 
unauthorized  by  the  new  Constitution,  only  less  clearly. 
The  laws  of  Congress  and  those  of  the  States  were 
always  treated  together  by  the  Convention,  without 
any  difference  being  drawn  between  them  in  this  re- 
spect; and  before  the  people  the  burden  of  the  discus- 
sions related  to  unauthorized  laws  of  Congress,  for 
one  of  the  dreads  of  opponents  was  that  the  powers  of 
Congress  would  be  indefinitely  extended,  both  by  the 
legislative  authority  under  the  new  system,  and  by  the 
favoring  interpretation  of  such  extensions  by  the 
Federal  Courts,  while  the  advocates  of  the  new  system 
put  their  reliance  on  an  honest  Federal  Judiciary, 
which  would  interpret  the  new  system  with  fairness. 

Little,  if  anything,  new  can  be  written  to-day  about 
the  discussion  of  the  Constitution  in  1787  and  1788, 
and  the  intention  of  the  writer  in  the  present  chapter 
is  to  present  shortly  some  of  the  public  utterances 
upon  this  subject  by  the  essayists  of  the  day  and  in 
the  Ratifying  Conventions,  leaving  to  already  existing 
writings  the  full  details  of  this  branch  of  the  subject. 
Enough  will,  I  think,  be  produced  to  show  conclusively 
that  the  Judicial  Power  was  most  widely  recognized, 
and  its  great  influence  understood,  both  by  friend  and 
foe  of  the  new  system.  Friends  lauded  it,  as  sure  to 
result  in  holding  the  new  system  within  bounds,  while 
foes  denounced  it,  as  destined  to  render  the  Central 


1  b 


if 


160  THE  RELATION  OF  THE 

System  absolute,  and  utterly  to  abrogate  the  powers 
and  rights  of  the  States.  Both  classes  of  commen- 
tators will,  of  course,  be  cited  here,  for  the  evidence 
of  the  one  is  as  strong  as  that  of  the  other  in  regard 
to  the  belief  in  the  existence  in  the  Constitution  of  the 
Judicial  Power. 

It  should  be  added  that,  so  far  as  I  know,  the  ex- 
istence of  the  power  was  nowhere  denied  by  any 
writer  of  repute.  Some,  doubtless,  still  thought  it  an 
unwise  power  to  have  conferred,  but  not  one  seems  to 
have  expressed  doubt  as  to  the  intention  of  the  Con- 
vention to  incorporate  it  in  the  new  Constitution. 

Hardly  had  the  Constitutional  Convention  ad- 
journed, when  Pierce  Butler,  a  member  from  South 
Carolina,  wrote  (October  8)  a  letter  detailing  some 
items  of  the  plan,  and  specifying  that  they  had  agreed 
upon  "a  Judiciary  to  be  Supreme  in  all  matters  relating 
to  the  General  Government,  and  Appellate  in  State 
Controversies."  * 

And  the  "Remarks  to  the  People  of  Maryland"  by 
Aristides,2 — who  was  Alexander  Contee  Hanson,  a 
member  of  the  Maryland  State  Convention,  and  Chan- 
cellor of  the  State  from  1789  until  his  death, — are 
very  plain  on  this  point,  touching,  however,  on  other 
matters  as  well.  He  writes  of  the  clause  as  to  making 
any  laws  which  shall  be  necessary  and  proper,  and  then 
refers  to  the  apprehension  that  this  "sweeping  clause" 

1  Farrand's  "Records,"  Vol.  Ill,  pp.  102,  103. 

*  Paul  Leicester  Ford's  "Pamphlets  on  the  Constitution  of  the 
United  States  published  during  its  discussion  by  the  People, 
1787-1788,"  pp.  217-257. 


JUDICIARY  TO  THE  CONSTITUTION  161 

will  afford  a  pretext  for  freeing  Congress  from  all 
constitutional  restraints,  going  on  to  say : 

I  take  the  construction  of  these  words  to  be  precisely 
the  same  as  if  the  clause  had  preceded  [sic]  further  and 
said,  "No  Act  of  Congress  shall  be  valid,  unless  it  have 
relation  to  the  foregoing  powers,  and  be  necessary  and 
proper  for  carrying  them  into  execution."  But  say  the 
objectors,  "The  Congress,  being  of  itself  to  judge  of  the 
necessity  and  propriety,  may  pass  any  act,  which  it  may 
deem  expedient,  for  any  other  purpose."  This  objection 
applies  with  equal  force  to  each  particular  power  de- 
fined by  the  Constitution.  .  .  .  They  may  reflect,  how- 
ever, that  every  judge  in  the  Union,  whether  of  State  or 
federal  appointment  (and  some  persons  would  say  every 
jury3)  will  have  a  right  to  reject  any  act  handed  to 
him  as  a  law,  which  he  may  conceive  repugnant  to  the 
Constitution. 

Elbridge  Gerry,  in  his  "Observations,"  4  was  far  less 
favorable,  and  went  into  many  objections,  the  follow- 
ing among  others: 

There  are  no  well  defined  limits  of  the  Judiciary  Powers, 
they  seem  to  be  left  as  a  boundless  ocean,  that  has  broken 
over  the  chart  of  the  Supreme  Lawgiver,  "thus  far  shalt 
thou  go  and  no  further,"  and  as  they  cannot  be  compre- 
hended by  the  clearest  capacity  or  the  most  sagacious 
mind,  it  would  be  a  Herculean  labor  to  attempt  to  de- 
scribe the  dangers  with  which  they  are  replete. 

8  This  seems  to  us  to-day  a  curious  idea ;  but  it  was  evidently 
not  confined  to  Hanson's  mind,  for  Luther  Martin  argued  against 
it  upon  the  trial  of  the  impeachment  of  Judge  Chase  in  1804, 
Farrand's  "Records,"  Vol.  Ill,  pp.  407,  408. 

*  Ford's  "Pamphlets,"  etc.,  p.  9. 


i62  THE  RELATION  OF  THE 

Robert  Yates  of  New  York,  as  "Brutus,"  was  very 
clear  as  to  the  broad  powers  conferred  on  the  Judiciary 
and  very  decidedly  against  this  part  of  the  Constitu- 
tion.    As  he  wrote  in  one  of  his  papers : 

This  Government  is  a  complete  system,  not  only  for 
making,  but  for  executing  laws.  And  the  courts  of  law, 
which  will  be  constituted  by  it,  are  not  only  to  decide 
on  the  Constitution  and  laws  made  in  pursuance  of  it, 
but  by  officers  subordinate  to  them,  to  execute  all  their 
decisions.  .  .  .  No  errors  they  may  commit  can  be  cor- 
rected by  any  power  above  them,  if  any  such  power 
there  be,  nor  can  they  be  removed  from  office  for  making 
ever  so  many  erroneous  decisions.  .  .  .  The  opinions  of 
the  Supreme  Court,  whatever  they  may  be,  will  have  the 
force  of  law ;  because  there  is  no  power  provided  in  the 
Constitution,  that  can  correct  their  errors  or  control  their 
jurisdiction.  From  this  court  there  is  no  appeal.  And 
I  conceive  the  legislature  themselves  cannot  set  aside  a 
decree  of  this  court,  because  they  are  authorized  by  the 
Constitution  to  decide  in  the  last  resort.  [And  in  a  later 
number  he  added]  The  supreme  court  then  have  a  right, 
independent  of  the  legislature,  to  give  a  construction  to 
the  Constitution  and  every  part  of  it,  and  there  is  no 
power  provided  in  this  system  to  correct  their  construc- 
tion or  do  away  with  it.  If  therefore  the  legislature  pass 
any  laws  inconsistent  with  the  sense  the  judges  put  upon 
the  Constitution,  they  will  declare  it  void.5 

In  the  Federalist,  the  treatise  which  may  almost  be 

said  to  have  been  published  by  authority,  the  right  and 

6  Quoted  in  Davis's  "Annulment  of  Legislation  by  the  Supreme 
Court"  in  Amer.  Polit.  Sci.  Rev.,  Vol.  VII,  p.  577,  from  Paul 
Leicester  Ford's  "Essays  on  the  Constitution  of  the  United 
States,"  etc.,  p.  295. 


JUDICIARY  TO  THE  CONSTITUTION  163     » 

duty  of  the  Judiciary  in  regard  to  unconstitutional 
laws  were  recognized  and  asserted  in  numbers  of  the 
papers,  some  of  which  have  already  been  quoted  in 
these  pages,  but  the  following  may  be  added.  In 
Number  XVI,  referring  to  an  invasion  of  National 
rights  by  the  State  Legislature,  Hamilton  writes : 

If  the  judges  were  not  embarked  in  a  conspiracy  with 
the  legislature,  they  would  pronounce  the  resolutions  of   /    fc  / 
such  a  majority  to  be  contrary  to  the  supreme  law  of  the  /   " 
land,  unconstitutional  and  void. 


J 


And  his  exclusion  from  the  supremacy,  provided 
by  the  Constitution,  of  laws  of  Congress  not  passed  in 
pursuance  of  the  instrument  6  is  equally  clear.  In  a 
late  number  (LXXX)  he  examined  the  question 
whether  the  limitations  were  merely  binding  on  the 
consciences  of  members  of  Congress,  and  hence  what 
lawyers  call  "directory";  but  his  conclusion  was  that 
they  are  far  more  than  this,  and  are  mandatory.7 

The  acrid  Luther  Martin,  who  had  been  so  closely 
concerned  with  the  early  beginnings  of  the  provisions 
as  to  Judicial  Power,  but  whose  limited  ideas  upon 
the  subject  had  been  entirely  overruled,  in  his  lengthy 
"Genuine  Information,"  told  the  Maryland  Legislature 
on  November  29,  1787,  that 

whether,  therefore,  any  laws  or  regulations  of  the  Con- 
gress, or  any  acts  of  its  President  or  other  officers,  are 

8  Ante,  p.  152. 

7  Those  who  desire  to  follow  further  the  opinions  expressed 
by  the  Federalist  should  consult  Nos.  XVI,  XXXIII,  LXXVIII, 
LXXIX,  and  LXXX. 


1 64  THE  RELATION  OF  THE 

contrary  to,  or  warranted  by  the  constitution,  rests  only 
with  the  judges,  who  are  appointed  by  Congress  to  de- 
termine ;  by  whose  determination  every  State  must  be 
bound.8 

In  Pennsylvania,  the  unknown  author  of  "Centinel" 
argued  as  follows  against  the  Constitution  in  his  Num- 
ber V,  and  after  quoting  Article  VI  in  regard  to  the 
Constitution  and  laws,  etc.,  being  supreme,  wrote: 

The  words  "pursuant  to  the  constitution"  will  be  no  re- 
striction to  the  authority  of  Congress ;  for  the  foregoing 
sections  give  them  unlimited  jurisdiction;  their  unbound- 
ed power  of  taxation  alone  includes  all  others,  as  who- 
ever has  the  purse-strings  will  have  full  dominion.  .  .  . 
[But  the  Convention  has  added  also  the  power  to  make 
all  laws  necessary  and  proper.]  Whatever  law  Congress 
may  deem  necessary  and  proper  for  carrying  into  execu- 
tion any  of  the  powers  vested  in  them  may  be  enacted; 
and  by  virtue  of  this  clause,  they  may  control  and  abro- 
gate any  and  every  law  of  the  State  governments,  on  the 
allegation  that  they  interfere  with  the  execution  of  any  of 
their  powers.  .  .  .  [And  in  a  later  Number  (XVI)  he 
argues  to  much  the  same  effect,  and  adds  that  the  laws 
would  be  subject  to  the  scrutiny  of  the  judges]  whose 
province  it  would  be  to  determine  the  constitutionality 
of  any  law  that  may  be  controverted.9 

In  the  debates  in  the  Pennsylvania  Ratifying  Con- 
vention, the  general  subject  was  most  clearly  stated 

8  Farrand's  "Records,"  Vol.  Ill,  pp.  172-230:  see  especially 
p.  220. 

8  "Centinel"  is  reproduced  in  "Pennsylvania  and  the  Federal 
Convention,"  edited  by  John  Bach  McMaster  and  Frederick  D. 
Stone,  pp.  611,  612,  659. 


JUDICIARY  TO  THE  CONSTITUTION  165 

by  at  least  two  members.  Wilson's  views  are  so  well 
known  that  it  is  almost  surplusage  to  reproduce  them, 
but  the  following  is  so  plain  as  to  be  worth  the  space 
it  will  take: 

I  say,  under  this  constitution,  the  legislature  may  be 
restrained  and  kept  within  its  prescribed  bounds  by  the 
interposition  of  the  judicial  department.  [Should  the 
Legislature  transgress  the  bounds  assigned  to  it  and  pass 
an  unauthorized  law],  when  it  comes  to  be  discussed 
fore  the  judges,  when  they  consider  its  principles  and 
find  it  to  be  incompatible  with  the  superior  powers  of  the 
constitution,  it  is  their  duty  to  pronounce  it  void;  and 
judges  independent,  and  not  obliged  to  look  every  session 
for  a  continuance  of  their  salaries,  will  behave  with  in- 
trepidity and  refuse  to  the  act  the  sanction  of  judicial 
authority.10 

And  Wilson  reports  McKean  as  saying  similarly 
of  the  Legislature  that 

It  may  be  restrained  in  several  ways: 
1.  By  the  judges  deciding  against  the  Legislature  in 
Favor  of  the  Constitution.11 

Fears  were  expressed  in  the  Ratifying  Conventions 
of  at  least  two  States  that  the  restrictions  contained 

10  Ibid.,  pp.  304-305,  and  see  the  same  thing  expressed  again 
later  at  p.  340  and  p.  354.  Immediately  after  the  matter  quoted 
in  the  text,  Wilson  goes  on :  "In  the  same  manner,  the  President 
of  the  United  States  could  shield  himself  and  refuse  to  carry 
into  effect  an  act  that  violates  the  Constitution";  see  also  pp. 
305  and  398.  I  shall  return  to  this  again  in  the  last  chapter 
of  this  book. 

11  Ibid.,  p.  766. 


ass 


1 66  THE  RELATION  OF  THE 

in  the  Constitution  would  be  overridden  by  Congress, 
and  the  powers  be  enormously  extended.  In  Massa- 
chusetts these  objections  were  met  by  the  recommenda- 
tion in  the  resolution  of  ratification  of  amendments, 
one  of  which  contained  the  clause  that  "all  powers  not 
expressly  delegated  .  .  .  were  reserved,"  etc.  This 
brought  from  Sam  Adams  the  following  statement : 

It  removes  a  doubt  which  many  have  entertained  re- 
specting the  matter  and  gives  assurance  that,  if  any  law 
made  by  the  federal  government  shall  be  extended  beyond 
the  powers  granted  by  the  proposed  Constitution,  and 
inconsistent  with  the  constitution  of  this  state,  it  will  be 
an  error,  and  adjudged  by  the  courts  of  law  to  be  void.12 

In  the  New  York  Convention,  Williams  and  Me- 
lancthon  Smith  thought  the  powers  conferred  gave 
Congress  express  authority  to  pass  any  law  they  might 
please  and  might  judge  necessary;  Smith  even  speci- 
fying that 

they  would  have  power  to  abrogate  the  laws  of  the 
States,  and  to  prevent  the  operation  of  their  taxes;  and 
all  courts,  before  whom  any  dispute  on  these  points 
should  come,  whether  federal  or  not,  would  be  bound  by 
oath  to  give  judgment  according  to  the  laws  of  the  Union. 

Similarly,  Williams  referred  to  the  language  as  to 
providing  for  the  common  defense  and  general  wel- 
fare,  and   that  in   regard   to  passing   necessary   and 
proper  laws,  continuing  thus : 
1J  Elliot's  "Debates,"  Vol.  II,  pp.  122,  123,  131,  177,  178. 


JUDICIARY  TO  THE  CONSTITUTION  167 

It  is,  therefore,  evident  that  the  legislature,  under  this 
constitution,  may  pass  any  law  which  they  may  think 
proper.  [And  added  later]  If  the  Congress  should 
judge  it  a  proper  provision  for  the  common  defense  and 
general  welfare  that  the  state  governments  should  be 
essentially  destroyed,  what,  in  the  name  of  common 
sense,  will  prevent  them?  Are  they  not  constitutionally 
authorized  to  pass  such  laws  ? 13 

Nothing  could  be  plainer  than  Ellsworth's  expres- 
sions in  the  Connecticut  Ratifying  Convention,  when 
he  said: 

This  Constitution  defines  the  extent  of  the  powers  of 
the  general  government.  If  the  general  legislature  should 
at  any  time  overleap  their  limits,  the  judicial  department 
is  a  constitutional  check.  If 'the  United  States  go  beyond 
their  powers,  if  they  make  a  law  which  the  Constitution 
does  not  authorize,  it  is  void;  and  the  judicial  powers, 
the  national  judges,  who,  to  secure  their  impartiality,  are 
to  be  made  independent,  will  declare  it  to  be  void.  On 
the  other  hand,  if  the  States  go  beyond  their  limits,  if 
they  make  a  law  which  is  a  usurpation  upon  the  general 
government,  the  law  is  void;  and  upright,  independent 
judges  will  declare  it  so.14 

From  the  debates  of  the  Virginia  Convention  Mar- 
shall has  already  been  quoted  15  as  most  distinctly  as- 
serting the  power  of  the  Judiciary,  while  Patrick 
Henry  said : 16 

18  Ibid.,  pp.  330,  334,  338,  378. 

"Farrand's  "Records,"  Vol.  Ill,  pp.  240,  241. 

15    Ante,  p.  153. 

"Elliot's  "Debates,"  Vol.  Ill,  pp.  324,  325. 


1 68  THE  RELATION  OF  THE 

Yes,  sir,  our  judges  opposed  the  acts  of  the  legislature. 
We  have  this  landmark  to  guide  us.  They  had  fortitude 
to  declare  that  they  were  the  judiciary,  and  would  oppose 
unconstitutional  acts.  Are  you  sure  that  your  federal 
judiciary  will  act  thus? 

To  the  opinions  already  quoted  might  be  added  like 
ones  from  numbers  of  others,  too, — Grayson,  Pendle- 
ton, and  Randolph  in  Virginia;  in  Delaware,  Dickin- 
son; in  New  York,  Hamilton  and  others;  in  South 
Carolina,  Rutledge,  and  C.  C.  Pinckney,  and  in  North 
Carolina,  Steele,  Davie,  and  Iredell 17  whose  opinions 
have  already  been  shown  in  these  pages.  Baldwin,  of 
far-off  Georgia,  was  also  a  believer  in  the  general 
doctrine.18  But  more  than  enough  recognition  of  the 
existence  of  the  Judicial  Power  in  the  new  system  has 
been  cited,  until  some  denials  that  it  had  any  place  in 
it  are  shown  us  from  somewhere. 

During  the  time  while  the  Constitution  was  under 
consideration  in  the  States,  or  a  little  later,  and  at 
least  before  it  was  put  into  operation,  the  question 
came  up  twice  judicially  in  separate  States, — in  Vir- 
ginia in  the  case  of  the  Judges,  and  in  South  Carolina 
in  Ham  v.  McClaws.  In  the  first-named  case,19  in 
1788,  the  Court  of  Appeals  and  other  courts  of  Vir- 
ginia sent  a  remonstrance  to  the  Legislature  against 
a  recent  statute  requiring  them,  in  addition  to  their 

"Melvin's  "Judicial  Bulwark,"  Amer.  Polit.  Set.  Rev.,  Vol. 
VIII,  p.  198.  For  Steele,  Horace  A.  Davis's  "Annulment  of 
Legislation  by  the  Supreme  Court,"  ibid.,  Vol.  VII,  p.  579, 
citing  Elliot's  "Debates,"  Vol.  IV,  p.  71. 

"Davis's  "Annulment,"  etc.,  ibid.,  p.  555. 


JUDICIARY  TO  THE  CONSTITUTION  169 

existing  duties,  to  act  as  judges  of  a  newly  estab- 
lished District  Court,  without  increase  of  salary. 
They  declined  to  do  as  required,  saying  that  the  act 
was  contrary  to  the  Constitution,  and  therefore  must 
be  controlled  by  the  Constitution.  The  subject  re- 
mained a  matter  of  controversy,  and  was  again  under 
judicial  consideration  in  Kamper  v.  Hawkins  in  1793, 
when  the  judges  were  unanimous  that  the  law  was 
unconstitutional.  In  the  end  the  act  was  amended, 
and  the  judges  all  resigned,  but  requalified  under  the/  f 
new  statute.20 

In  Ham  v.  McClaws  21  in  1789,  the  Superior  Court 
of  South  Carolina  not  only  wrote  that  "it  is  clear, 
that  statutes  passed  against  the  plain  and  obvious  prin- 
ciples of  common  right,  and  common  reason,  are  abso- 
lutely null  and  void,  as  far  as  they  are  calculated  to 
operate  against  those  principles,"  but  held  that  an  act 
of  1788,  which  positively  and  without  exception  pro- 
hibited the  importation  of  negroes,  did  not  apply  to  an 
actual  settler,  who  had  made  such  importation  under  a 
prior  act  of  1787  and  could  not  possibly  have  known, 
at  the  time  of  his  importation,  of  the  act  of  1788. 
The  case  was,  it  is  true,  put  upon  the  basis  of  inter- 
pretation, and  that  they  would  not  do  the  Legislature 
the  injustice  to  suppose  that  such  a  result  was  in- 
tended; but  it  went  a  long  way  in  interpretation,  and 
the  tendency  was  plainly  in  the  direction  of  holding 
laws  void  in  some  cases. 

10  Kamper    v.    Hawkins,    2    Va.    Cases     (Brockenbrough    anJ 
Holmes),  20. 
21 1  Bay,  93. 


CHAPTER  IX 

RAPID  SPREAD  OF  THE  DOCTRINE  AFTER   1 789 

When  once  the  Constitution  went  into  effect,  in 
1789,  it  was  to  be  expected,  after  all  that  had  been 
said  in  public  by  that  date  of  its  meaning  in  regard 
to  the  Judiciary,  that  that  department's  powers  under 
the  new  instrument  would  be  widely  asserted  and 
recognized  throughout  the  country.  And  such  was 
the  case.  From  many  sources,  some  of  such  a  char- 
acter as  to  be  utterly  unanswerable,  came  up  rapidly 
year  by  year  a  mass  of  proof. 

In  the  very  first  Congress,  where  as  many  of  the 
Framers  as  eighteen, — that  is,  fully  one-third, — sate 
as  members,1  and  had  that  leading  hand  in  legislation 
which  belonged  of  right  to  them,  one  really  conclusive 
evidence  of  the  meaning  of  the  instrument  in  regard 
to  the  Judiciary  was  quickly  furnished.  Numbers  of 
Acts  of  Congress  were  required  to  put  the  new  Govern- 
ment into  operation  and  to  bring  into  play  the  various 
provisions  of  the  Constitution.  One  of  these  new  laws 
was  the  Judiciary  Act  of  September  24,  1789,  which 
has  stood  the  test  of  years  so  well  that  many  of  its 
provisions  are  still  to-day  in  effect.  It  is  well  known 
to  have  been  drawn  by  Ellsworth  of  Connecticut, 
1  Melvin's  "Judicial  Bulwark,"  ut  ante,  p.  200. 

170 


JUDICIARY  AND  CONSTITUTION      171 

whose  course  in  the  Federal  Convention, — and  still 
more  in  the  Connecticut  Ratifying  Convention, — can 
leave  no  shadow  of  doubt  as  to  his  belief  in  the  power 
of  the  Judiciary  to  hold  laws  (either  of  the  United 
States  or  of  the  States)  unconstitutional  in  a  proper 
case.  With  him  on  the  committee  were  Paterson, 
Few,  Strong,  and  Bassett, — all  likewise  Framers.2 

By  one  clause  of  the  Act  of  1789,3  appellate  juris- 
diction was  conferred  upon  the  United  States  Supreme 
Court  from  any  decree  in  a  case  in  the  proper  State 
or  Federal  Court  in  which  a  statute  or  treaty  of  the 
United  States  had  been  called  in  question,  and  the 
decision  had  been  against  its  validity.  That  is  to  say, 
not  only  was  it  recognized  that  the  State  Courts  and 
the  lower  Courts  of  the  United  States  might  perhaps 
hold  statutes  of  a  State  to  be  in  violation  of  the  United 
States  Constitution,  and  hence  void,  but  that  they 
would  probably  at  times  hold  a  State  statute  valid  and 
a  Federal  statute  conflicting  with  it  void,  because  of 
the  latter's  not  being  authorized  under  the  Constitu- 
tion; or  in  other  words,  as  the  Federalist  had  put  it, 
because  the  Federal  statute  was  not  passed  in  pursu- 
ance of  the  Constitution. 

Nor  is  this  all:  full  power  was  conferred  in  these 
cases  on  the  United  States  Supreme  Court  in  error. 

'  On  the  origin  of  the  Judiciary  Act,  see  Madison,  May  30, 
1832,  to  Edward  Everett,  in  "Works,"  by  Congress,  1865,  Vol. 
IV,  pp.  220,  221 :  "Life  of  Ellsworth,"  by  Henry  Flanders,  in 
"Lives  and  Times  of  the  Chief  Justices,"  Vol.  II,  p.  159:  Davis's 
"Annulment,"  etc.,  ut  ante.,  p.  546:  Melvin's  "Judicial  Bulwark," 
ut  ante.,  p.  200. 

'Story's  "Statutes  of  the  United  States"  (2d  edition,  by  Geo. 
Sharswood),  p.  53.    Sec.  25  is  the  section  in  question. 


172  THE  RELATION  OF  THE 

It  could  either  affirm  or  reverse,  and  must  do  the  one 
or  the  other.  If  it  affirms  a  ruling  of  the  lower  court 
against  the  power  claimed  under  the  United  States 
Constitution  or  law,  it  must  first  inquire  and  must  de- 
cide for  itself  that  the  Federal  law  is  unconstitutional 
and  void, — or,  if  it  thinks  the  Federal  law  to  be  in 
pursuance  of  the  Constitution  and  the  conflicting  State 
law  void,  it  must  so  find,  and  therefore  reverse.  The 
final  decision  is  ever  a  decision  of  the  Supreme  Court. 
The  only  limitation  is  that,  if  the  lower  court  has  de- 
creed in  favor  of  the  power  claimed  for  the  United 
States,  there  is  no  right  at  all  of  error  or  appeal,  for 
the  evident  reason  that  the  power  has  then  been  already 
recognized.  However,  where  an  appeal,  or  error, 
does  lie,  the  United  States  Supreme  Court  must  dis- 
tinctly rule  (if  it  affirms)  that  a  Federal  statute  is  un- 
authorized and  void.  This  seems  to  have  been  ques- 
tioned,4 but  surely  nothing  could  be  plainer  on  exam- 
ination; nor  does  it  seem  possible  to  doubt  that  such 
was  the  intention  of  Ellsworth  and  of  whoever  aided 
him  in  drafting  the  Act,  and  of  the  Members  of  Con- 
gress who  passed  it.  They  evidently  designed  to  give 
the  Supreme  Court  the  right  to  interpret  the  Federal 
Constitution,  and  the  power  to  reverse  (and  equally 
to  affirm)  any  decree  of  a  lower  court  against  a  Fed- 
eral power  fully  secured  this  end. 

It  is  worthy  of  mention,  too,  that,  in  a  course  of 
lectures  delivered  at  the  College  of  Philadelphia  in 

4  Horace  A.  Davis's  "Annulment  of  Legislation,"  ut  ante.,  pp. 
583  et  seq.  See  Mr.  Melvin's  answer  in  his  "Judicial  Bulwark," 
ut  ante. 


JUDICIARY  TO  THE  CONSTITUTION  173 

1 790-9 1,5  James  Wilson  reasserted  his  already  ex- 
pressed views  on  the  subject,  and  that  in  1802  Judge 
Tucker   maintained   similar  views   in   his  edition   of 


Blackstone ; 6  so  that  the  doctrine  was  soon  being 
taught  and  spread  far  and  wide  among  students  and 
the  oncoming  generation.  When,  too,  Elias  Boudinot 
was  warned  in  the  House  of  Representatives,  in  1791, 
that  the  Courts  would  decide  the  proposed  Bank  of 
the  United  States  to  be  unconstitutional,  he  not  only- 
referred  to  the  right  of  the  Judiciary,  but  openly  ex- 
pressed his  boast  and  confidence  therein.7 

Soon,  too,  more  judicial  decisions  recognizing  and 
exercising  the  power  began  to  appear.  In  1791,  New 
Hampshire, — which  had  already  heard  the  doctrine 
asserted  in  her  Legislature  and  probably  in  her  lower 
Courts,8 — definitely  joined  the  column  of  States  in 
which  the  power  of  the  courts  was  enforced  by  the 
Judiciary. 

One  Elizabeth  McClary  had  lost  a  suit  in  Rocking- 
ham County,  and,  in  accordance  with  what  has  been  /  '1/ 
shown 9  to  have  been  a  practice, — often  roundly 
stopped  by  the  King  in  Council  in  colonial  days, — she 
then  petitioned  the  Legislature  in  1790  and  secured 
the  passage  of  "an  act  to  restore  [her]  to  her  rights/' 
In  other  words,  the  Legislature  undertook  to  interfere 
with  the  Judiciary,  and  to  grant  a  new  trial  in  a  case 

""Lectures  on  Law,"  by  James  Wilson,  Vol.  I,  pp.  460,  461. 
"Tucker's  "Blackstone,"  Vol.   I,  Appendix,  pp.  354,  355. 

7  Benton's  "Abridgment,"  Vol.  I,  p.  291. 

8  Ante,  pp.  73,  74- 

9  Ante,  pp.  74,  75- 


> 


J 


174  THE  RELATION  OF  THE 

already  determined.  On  the  new  trial,  counsel  for  the 
original  plaintiff  objected 

that  the  act  could  not  entitle  the  original  defendant  to 
a  trial  by  way  of  appeal,  for  if  it  reversed  the  judgment, 
it  was  repugnant  to  the  constitution  of  the  State :  and  if 
it  did  not  reverse  the  judgment,  the  same  might  be 
pleaded  in  bar. 

After  a  full  hearing,  the  Court  entered  the  following 
decree : 

It  appears  to  the  court  that  if  the  act  virtually  or  really 
reverses  the  judgment  of  this  court,  it  is  repugnant  to 
the  bill  of  rights  and  constitution  of  this  State,  and  if  the 
Act  does  not  reverse  the  said  judgment  the  court  cannot 
render  another  judgment  in  the  same  case  upon  appeal, 
while  the  first  judgment  remains  in  full  force.  It  is 
therefore  considered  by  the  Court  that  the  said  Act  is 
ineffectual  and  inadmissible,  and  that  the  said  action  be 
dismissed. 

The  case  was  in  the  Superior  Court  for  the  County 
of  Rockingham.10 

10  See  article  by  Walter  F.  Dodd  in  Amer.  Hist  or.  Rev.,  Vol. 
XII,  pp.  348-350.  Mr.  Dodd  examined  the  MS.  Records  of  the 
two  houses  of  the  Legislature  of  New  Hampshire,  and  of  the 
Superior  Court  for  Rockingham  County,  for  Sept.,  1791,  and  the 
quotations  in  my  text  are  from  these  original  authorities  cited 
by  him.  See  also  William  Plumer's  "Life  of  Wm.  Plumer," 
pp.  170-172  and  59,  and  my  article  in  Vol.  XL VII  of  the  Amer. 
Law  Review,  p.  683,  etc.  It  will  be  observed  how  exactly  what 
Plumer  writes  of  his  father's  contentions  in  the  case  agrees  with 
the  original  records  found  by  Mr.  Dodd.  When  I  wrote  my 
article,  it  is  needless  to  say  that  I  did  not  know  the  subject 
had  been  so  much  more  thoroughly  studied  by  Mr.  Dodd  several 
years  before. 


JUDICIARY  TO  THE  CONSTITUTION  175 

In  1792,  in  Bowman  v.  Middleton,11  and  again  in 
1805  in  White  v.  Kendrick,12  South  Carolina  followed 
the  indications  of  Ham  v.  McClaws,13  and  aligned 
herself  far  more  fully  with  the  growing  doctrine  in 
regard  to  Judicial  Power.  In  the  case  of  1792,  a 
law  of  1 71 2  was  held  void,  which  aimed  to  vest  the 
title  to  land  in  certain  persons  without  a  trial  by  jury 
or  otherwise,  the  Court  saying  that  the  law  was 
"against  common  right,  as  well  as  against  magna 
charta."  And  the  decision  of  1805  held  void  a  law 
of  1 80 1,  extending  the  jurisdiction  of  justices  of  the 
peace  to  cases  involving  as  much  as  $30,  for  the  reason 
that  it  violated  a  provision  of  the  Constitution  that 
trial  by  jury  should  remain  as  theretofore,  and  justices 
had  never  had  jurisdiction  to  so  large  an  amount. 

In  1792  and  1793  Virginia  again  rendered  decisions 
of  importance  in  the  matter.  Turner  v.  Turner  14  was 
perhaps  in  the  main  a  question  of  the  proper  interpre- 
tation of  an  Act  of  Assembly ;  but  Page  v.  Pendleton  15 
very  distinctly  ruled  that  a  debt  due  to  a  British  cred- 
itor was  not  discharged  by  payment  in  paper  money 
into  the  loan  office,  under  the  Act  of  1788,  despite  the 
fact  that  this  statute  expressly  enacted  that  it  should 
be ;  and  in  Kamper  v.  Hawkins  16  the  General  Court 
held  unanimously  that  the  Judges  were  not  bound  by  a 

"I  Bay,  252. 
12 1  Brevard,  469.     • 
13  Ante,  p.  169. 
"4  Call,  234. 
15  4  Wythe,  211. 

18 2  Va.  Cases  (Brockenbrough  and  Holmes),  20.  This  case 
has  been  already  mentioned,  ante,  p.   169. 


176  THE  RELATION  OF  THE 

statute  which  required  them  to  sit  also  as  members 
of  a  newly-created  court,  without  additional  pay. 

New  Jersey,  too,  was  heard  from  again  in  1796, 
when,  in  Taylor  v.  Reading,17  her  Supreme  Court  re- 
asserted the  ruling  of  Holmes  v.  Walton18  in  1780; 
and  she  ruled  the  same  way  once  more  in  1804,  in 
State  v.  Parkhurst,19  after  a  very  determined  contest. 
North  Carolina  adhered  to  Bayard  v.  Singleton  in 
Ogden  v.  Witherspoon  20  in  1802,  and  in  University 
v.  Foy  21  in  1805. 

During  about  this  same  period  two  more  States 
ranged  themselves  clearly  enough,  for  the  first  time, 
on  the  side  of  the  Judiciary's  power :  Pennsylvania  in 
Austin  v.  Trustees22  in  1793,  and  in  Respublica  v. 
Duquet  23  in  1799,  and  Maryland  in  1802  in  Whitting- 
ton  v.  Polk.24  In  Austin  v.  Trustees,  there  was  an- 
other ground  for  the  decision ;  but  the  Supreme  Court 
of  Pennsylvania  expressed  itself  as  having  "no  diffi- 
culty in  declaring  .  .  .  that  the  former  act  was 
unconstitutional" :  while  in  the  Duquet  case,  so  far 
had  the  doctrine  in  general  come  to  be  accepted,  that 
Jared  Ingersoll,  a  leader  of  the  bar  and  member  of  the 
Federal  Convention,  divided  his  argument  into  two 
heads,  the  first  of  which  was:  "Is  the  law  of  .  .  . 
unconstitutional?";  and  the  Court  wrote  in  its  opinion 

"4  Halstead,  Appendix,  444. 

18  See  ante,  pp.  61-63. 

19  4  Halstead,  Appendix,  444. 
*°2  Haywood,  227  or  404. 

21  1  Murphy,  58. 
"1  Yeates,  260. 
"2  Yeates,  493. 
u  1  Harris  &  Johnson,  236. 


JUDICIARY  TO  THE  CONSTITUTION  177 

that,  though  there  was  no  breach  of  the  Constitution 
shown  in  the  case,  and  though  the  breach  must  be 
very  plain  before  they  would  hold  a  law  void, 

Yet  if  a  violation  of  the  constitution  should  in  any  case 
be  made  by  an  act  of  the  legislature,  and  that  violation 
should  unequivocally  appear  to  us,  we  shall  think  it  our 
duty  not  to  shrink  from  the  task  of  saying  such  law  is 
void. 

In  Whittington  v.  Polk,  though  the  act  in  question 
was  held  not  to  be  unconstitutional,  both  sides  ad- 
mitted that  an  act  of  assembly  repugnant  to  the  Con- 
stitution was  void,  and  that  the  Court  had  the  right  so 
to  determine.  The  opinion  added  that  these  points 
"have  not  been  controverted  in  any  of  the  cases  which 
have  been  brought  before  this  court." 

Before  the  end  of  the  eighteenth  century,  therefore, 
there  were  no  less  than  eight  cases  in  as  many  States, — 
New  Jersey,  Connecticut,  Rhode  Island,  North  Caro- 
lina, South  Carolina,  New  Hampshire,  Virginia,  and 
Pennsylvania,  i.e.,  nearly  two-thirds  of  all, — enforc- 
ing the  right  of  the  Judiciary  to  refuse  to  carry  out  a 
statute  on  the  ground  of  its  unconstitutionality;  and 
with  these  New  York  may  almost  be  joined,  while 
Maryland  has  just  been  shown  to  have  tended  most 
strongly  in  the  same  direction  in  1802.25  In  1801,  the 
new  State  of  Kentucky  ruled  to  precisely  the  same 
effect  in  Stidger  v.  Rogers.26 

Nor  is  even  this  by  any  means  all  the  evidence  fur- 

"  Cf.  with  pp.  121-123. 
28  See  ante,  p.  76. 


178  THE  RELATION  OF  THE 

nished  by  these  first  few  years  of  the  new  Govern- 
ment's existence,  when  the  Framers  were  still  easily 
in  control  of  affairs.  A  potent  voice  had  come  up 
I  from  the  Federal  Courts  as  well.  The  question  first 
|  arose  in  them  in  cases  relating  to  Pensions.  Congress 
had  passed  on  March  23,  1792,27  a  statute  directing 
the  circuit  court  judges  to  hear  petitions  of  applicants 
to  be  placed  on  the  pension-lists,  and  the  decrees  in 
such  cases  were  to  be  subject  to  suspension  by  the 
Secretary  of  War  and  to  revision  by  Congress.  At 
least  four  of  the  Circuit  Courts  demurred,  and  one  of 
these  four  refused  to  act  in  the  matter, — plainly  on 
the  ground  that  the  law  was  an  unauthorized  effort  to 
require  the  judges  to  perform  work  which  was  not 
judicial.  In  Connecticut,  the  judges  sate  as  commis- 
sioners 28  and  made  findings,  one  of  which  was  after- 
wards, as  will  appear,  used  as  a  test-case. 

In  New  York,  the  Circuit  Court  29  took  the  matter 
into  consideration  on  April  5,  1792,  and  referred  to 
the  Government's  being  divided  into  three  branches, 
each  distinct  and  independent ;  adding : 

Neither  the  Legislative  nor  the  Executive  branches  can 
constitutionally  assign  to  the  Judicial  any  duties  but  such 
as  are  properly  judicial.  .  .  .  The  duties  assigned  to  the 
Circuit  Courts,  by  this  Act,  are  not  of  that  description. 

27  Story's  "Statutes  of  the  United  States"  (2d  edition  by  George 
Sharswood),  Vol.  I,  p.  224. 

28  "Note  to  Hayburn  case,"  2  Dallas,  pp.  410-14,  or  "American 
State  Papers,  Misc.,"  Vol.  I,  pp.  49-52. 

MDuane,  of  Rutgers  v.  Waddington  memory,  was  one  of  the 
three  judges  sitting. 


JUDICIARY  TO  THE  CONSTITUTION  179 

Nor  (so  they  went  on  in  effect)  does  the  Act  seem 
to  contemplate  them  as  such,  inasmuch  as  it  subjects 
the  decisions  of  the  courts  in  the  matter  to  suspension 
by  the  Secretary  of  War  and  revision  by  the  Legisla- 
ture. Hence,  the  Act  can  only  be  considered  as  ap- 
pointing commissioners  for  the  purpose,  by  official 
instead  of  personal  description,  and  we  think  ourselves 
entitled  to  accept  or  decline.  We  will  act,  adjourning 
the  court  as  usual  from  day  to  day,  but  proceeding 
regularly  as  commissioners  between  the  adjournments 
to  execute  the  business  of  the  Act.  A  copy  of  their 
minutes,  setting  forth  these  views,  was  sent  on  April 
10th  to  the  President,  with  a  request  that  he  would 
communicate  them  to  Congress.30 

In  North  Carolina,  the  same  course  was  followed, 
to  some  extent;  but  the  judges  did  not  think  they  could 
act  as  commissioners.  They  also  sent  a  letter,  dated 
June  8,  1792,  to  the  President,  in  which  they  wrote 
in  part : 

We  never  can  find  ourselves  in  a  more  painful  situa- 
tion than  to  be  obliged  to  object  to  the  execution  of  any 
[Act  of  the  Legislature,  but  we  cannot  think  the  Courts 
authorized  in  exercising]  power  not  in  its  nature  judi- 
cial, or,  if  judicial,  not  provided  for  upon  the  terms  the 
Constitution  requires.  .  .  .  These,  Sir,  are  our  reasons 
for  being  of  opinion  .  .  .  that  this  Circuit  Court  cannot 
be  justified  in  the  execution  of  that  part  of  the  act,  which 

30  "Note  to  Hayburn's  case,"  2  Dallas,  pp.  410-414.  Max  Far- 
rand's  "The  First  Hayburn  Case,"  in  Amer.  Hist  or.  Rev.,  Vol. 
XII,  pp.  281-285. 


V 


i8o  THE  RELATION  OF  THE 

requires  it  to  examine  and  report  an  opinion   [on  Pen- 
sion cases].81 

It  was,  however,  in  the  Circuit  Court  for  the  District 
of  Pennsylvania,  where  James  Wilson  presided  and 
had  beside  him  Blair,  J.  and  Peters,  District  Judge, 
that  the  issue  came  most  squarely  to  a  head.  It  is 
hard  to  see  how  there  can  be  a  doubt  that,  even  in  the 
lawyers'  sense,  they  held  the  Act  unconstitutional. 
The  record  of  their  docket  tells  us  baldly  that  the  peti- 
tion of  one  Hayburn  to  be  placed  upon  the  list  of 
Pensioners  came  up  before  them  on  April  II,  and  that 
when  the  petition  was  read,  they  entered  a  decree  that 
''after  due  deliberation  thereupon  had,  it  is  considered 
by  the  Court  that  the  same  be  not  proceeded  upon"; 
but  it  will  shortly  be  shown  that  all  the  extant  evi- 
dence indicates  that  the  unconstitutionality  of  the  law 
was  their  reason,  and  that  it  was  so  announced  from 
the  bench.  Written  statements  of  the  Court  itself 
seem  to  show  the  same  thing.32 

In  this  Circuit  also,  the  Judges  addressed  a  letter 
(April  18)  to  the  President,  in  which  they  wrote  that 
to  him  it  belonged  to  see  the  laws  faithfully  executed, 
and  that  therefore  they  thought  it  their  duty  to  lay 
before  him 

the  sentiments  which,  on  a  late  painful  occasion,  gov- 
erned us,  with  regard  to  an  act  passed  by  the  legislature 

81  Ibid. 

83  Prof.  Farrand  suggests  to  call  this  "The  First  Hayburn 
Case,"  in  order  to  distinguish  it  from  the  case  in  2  Dallas,  p. 
409.  To  Prof.  Farrand's  article,  already  cited,  are  due  nearly 
all  the  statements  in  the  text. 


JUDICIARY  TO  THE  CONSTITUTION  181 

of  the  Union.  .  .  .  We  have  been  unanimously  of  opin- 
ion, that,  under  this  Act,  the  Circuit  Court  for  the  Dis- 
trict of  Pennsylvania  could  not  proceed  [i.  Because  the 
business  assigned  to  us  is  not  judicial:  2.  Because  (if  we 
had  acted)  our  judgments  might  have  been  revised  by 
the  Legislative  and  Executive  Departments].  Such  re- 
vision and  control,  we  deemed  radically  inconsistent  with  ,  ^  .- 
the  independence  of  that  judicial  power  which  is  vested/  ™ 
in  the  courts.  .  .  .  These,  Sir,  are  the  reasons  of  our 
conduct.  Be  assured  that,  though  it  became  necessary, 
it  was  far  from  being  pleasant.  To  be  obliged  to  act 
contrary,  either  to  the  obvious  directions  of  Congress,  or 
to  a  constitutional  principle,  in  our  judgment,  equally 
obvious,  excited  feelings  in  us  which  we  hope  never  to 
experience  again.33 

Almost  immediately  after  the  Court's  refusal  to  go 
on  with  the  case,  Hayburn  presented  (April  13)  a 
memorial  to  the  House  of  Representatives,  setting 
forth  the  action  of  the  Court  and  asking  for  relief; 
and  there  was  some  consideration  of  the  matter. 
Boudinot,  a  member  of  the  House,  made  an  explana- 
tory statement,  saying : 

The  Court  thought  the  examination  of  invalids  a  very 
extraordinary  duty  to  be  imposed  on  the  judges  and 
looked  upon  the  law  which  imposes  that  duty  as  an  un- 
constitutional one,  inasmuch  as  it  directs  the  Secretary 
of  War  to  state  the  mistakes  of  the  judges  to  Congress 
for  their  revision ;  they  could  not,  therefore,  accede  to  a 
regulation  tending  to  render  the  Judiciary  subject  to  the 

83  "Note  to  Hayburn's  Case"  and  Prof.  Farrand's  article,  ut 
ante. 


1 82  THE  RELATION  OF  THE 

Legislative  and  Executive  powers.  .  .  .  This  being  the 
first  instance  in  which  a  court  of  justice  had  declared  a 
I  law  of  Congress  to  be  unconstitutional,  the  novelty  of  the 
case  produced  a  variety  of  opinions  with  respect  to  the 
measures  to  be  taken  on  the  occasion.34 

One  of  the  measures  suggested,  according  to  some 
newspapers,  was  impeachment,  which  would  hardly 
have  been  proposed,  unless  for  some  such  grievous  of- 
fense as  holding  a  law  of  Congress  unconstitutional. 

The  Aurora  of  April  20  wrote : 

Never  was  the  word  "impeachment"  so  hackneyed  as  it 
has  been  since  the  spirited  sentence  passed  by  our  judges 
on  an  unconstitutional  law.  .  .  .  But  when  these  im- 
peachment mongers  are  asked  how  any  law  is  to  be  de- 
clared unconstitutional,  they  tell  us  that  nothing  less  than 
a  general  convention  is  adequate  to  pass  sentence  on 
it.  .  .  . 

On  the  other  hand,  Camden,  in  the  same  paper  of 
the  2 1st,  disapproved  of  the  article  just  quoted,  as  well 
as  of  the  decision,  and  denied  that  any  one  in  Con- 
gress had  committed  himself  to  impeachment.  To 
this,  Freneau's  National  Gazette  of  April  16  adds : 

A  correspondent  remarks  that  the  late  decision  of  the 
Judges  of  the  U.  S.,  declaring  an  act  of  the  present  ses- 
sion of  Congress  unconstitutional,  must  be  matter  of  high 

**  "Annals  of  Congress,  2d  Congress,  1st  session,"  pp.  556,  557. 
The  quotation  in  the  text  seems  to  be  the  reporter's  summation 
of  what  Bondinot  said,  except  the  latter  part  as  to  the  instance 
being  the  first  in  which  a  court  had  held  a  law  unconstitutional, 
etc.,  which  is  probably  entirely  the  reporter's  own  opinion.  See 
also  Edward  S.  Corwin's  "Doctrine  of  Judicial  Review,"  pp. 
50,  51. 


JUDICIARY  TO  THE  CONSTITUTION  183 

gratification  to  every  republican  and  friend  of  lib- 
erty. ...  It  affords  a  just  hope  that  .  .  .  any  existing 
law  of  Congress,  which  may  be  supposed  to  trench  upon 
the  constitutional  rights  of  individuals  or  of  States,  will, 
at  convenient  seasons,  undergo  a.  revision;  particularly 
that  for  establishing  a  National  Bank. 

And  the  same  paper  of  the  23rd  contains  an  article 
noticing  "Camden's"  letter  in  the  Aurora  (quoted 
above),  and  saying: 

We  deny  "Camden's"  assertion;  and  assert  that  the 
word  "impeachment"  was  several  times  mentioned  in  the 
House  of  Representatives,  although  no  motion  was  made 
on  the  subject. 

And  again  on  May  10,  the  same  Gazette  spoke  of  "the 
decision  of  the  judges  against  the  constitutionality  of 
an  act  in  which  the  Executive  had  concurred  with  the 
legislative  department." 

With  all  this  evidence,  it  is  a  very  moderate  claim  35 
to  make  that  "there  would  seem  to  be  no  reasonable 
doubt  that  on  April  1 1  James  Wilson,  John  Blair  and 
Richard  Peters  declared  the  Invalid  Pension  Act  of 
1792  unconstitutional."  The  docket  does  not,  it  is 
true,  show  this  specifically,  but  on  ultratechnical 
grounds  it  is  hard  to  see  what  else  can  have  been  the 
ground  for  a  refusal  to  proceed  with  the  case.  It 
was  plainly  no  mere  temporary  postponement,  and 
the  evidence  from  all  other  sources,  in  the  House  of 

35  This  is  Prof.  Farrand's  claim  in  "The  First  Hayburn  Case," 
Amer.  Hist  or.  Rev.,  Vol.  XII,  pp.  281-285. 


1 84  THE  RELATION  OF  THE 

Representatives  and  out  of  it,  shows  conclusively  that 
unconstitutionality  was  the  ground  of  the  decision. 
The  First  Hay  burn  Case  was  then  the  earliest  instance 
in  which  a  Federal  Court  held  an  act  of  Congress  void. 

Attorney-General  Randolph  moved  later  in  the  Su- 
preme Court  for  a  mandamus  to  the  Circuit  Court  for 
the  District  of  Pennsylvania  to  proceed  with  the  peti- 
tion of  Hayburn,  but  no  decision  was  ever  rendered, 
because  Congress,  in  effect,  gave  up  the  question  and 
passed  a  law  for  the  relief  of  pensioners  in  another 
way.86 

But  this  extensively  considered  question  did  not  end 
even  here.  Doubts  were  entertained  as  to  the  validity 
of  the  findings  of  the  members  of  the  Circuit  Courts, 
who  had  sate  as  commissioners,  and  section  3  of  the 
Act  of  1793  directed  a  test-case  to  be  brought  to  raise 
this  point.  The  Circuit  Court  in  Connecticut  had  so  act- 
ed and  made  a  finding  in  favor  of  one  Todd,  and  this 
had  been  paid.  A  suit  was  now  brought  to  recover  it, 
but  it  is  not  certain  what  was  the  basis  of  the  decree 
to  refund,  which  was  entered  against  the  defendant. 
Our  knowledge  of  the  case  depends  on  a  note  made  by 
Taney,  filed  in  185 1  by  his  orders;  and  he  thought  that 
the  case  ruled  that  the  first  pension  act  conferred 
power,  which  was  not  judicial,  and  was  therefore  un- 
constitutional ;  but  it  seems  that  more  modern  students 
are  probably  right,  and  that  the  real  reason  for  the 

38  Hayburn's  Case,  2  Dallas,  409.  Act  of  28  February,  1793, 
Story's  "Statutes  of  the  U.  S."  (2d  Edition,  by  Geo.  Sharswood), 
Vol.  I,  p.  304. 


JUDICIARY  TO  THE  CONSTITUTION  185 

decision  was  that  the  sitting  of  the  judges  as  commis- 
sioners was  held  to  be  unauthorized  under  the  act.37 

It  is  not  without  interest  to  find  that,  in  the  growth 
and  establishment  of  Judicial  Power  in  America, 
some  views  were  early  held  which  seem  to  us  to-day- 
very  strange.  Principles  are  rarely,  or  never,  brought 
forth  in  full  panoply  of  armor  at  their  first  appearance, 
but  grow  slowly  by  the  retention  of  what  is  desirable 
and  the  elimination  of  matters  perhaps  earnestly  con- 
tested for  by  some,  but  which  the  more  sober  judgment 
of  others  rules  out  as  impossible,  or  undesirable. 

In  1793,  at  the  time  when  Genet  was  making  us 
so  much  trouble,  President  Washington,  by  the  advice 
of  his  Cabinet,  asked  the  Justices  of  the  Supreme 
Court  a  series  of  questions  in  relation  to  our  differ- 
ences with  France  concerning  the  provisions  of  the 
treaties  with  her,  but  the  Supreme  Court  ended  for- 
ever this  attempted  perversion  of  Judicial  Power,  by 
replying  that  "they  deemed  it  improper  to  enter  the 
field  of  politics  by  declaring  their  opinions  on  ques- 
tions not  growing  out  of  some  case  actually  before 
them.38 

In  1795,  the  general  question  arose  again  in  the 
Circuit  Court  of  Pennsylvania,  in  Van  Home's  Lessee 
v.  Dorrance.39     The  case  concerned  the  well-known 

"  U.  S.  v.  Yale  Todd  in  "Note"  to  U.  S.  v.  Ferreira,  13  How- 
ard, 52.  Farrand's  "First  Hayburn  Case,"  Amer.  Hist  or.  Rev., 
Vol.  XII,  pp.  281-285.  Thayer's  "Cases  in  Constitutional  Law," 
Vol.  I,  p.  105  n. 

38  Marshall's  "Washington,"  Vol.  V,  pp.  433,  441,  cited  in 
Simeon  E.  Baldwin's  "The  American  Judiciary,"  pp.  33,  34,  and 
in  Corwin's  "Doctrine  of  Judicial  Review,"  pp.  50,  51. 

39  2  Dallas,  304. 


I  /  I 

1/ 


186  THE  RELATION  OF  THE 

dispute  between  Pennsylvania  and  Connecticut  in  re- 
gard to  certain  lands,  and  the  defendant  relied  on  the 
Quieting  and  Confirming  Act  of  the  former  State. 
Paterson,  J., — whose  probable  knowledge  of  Holmes 
v.  Walton  and  whose  connection  with  the  New  Jersey 
Plan  in  the  Convention  have  been  shown,40 — held  the 
act  in  question  to  be  in  violation  of  the  Federal  Consti- 
tution, on  the  ground  that  it  was  ex  post  facto  and 
impaired  the  obligation  of  a  contract,  and  directed  a 
verdict  for  the  plaintiff.     He  said : 

I  take  it  to  be  a  clear  position  that  if  a  legislative  act 
oppugns  a  constitutional  principle,  the  former  must  give 
way,  and  be  rejected  on  the  score  of  repugnance.  I  hold 
it  to  be  a  position  equally  clear  and  sound  that,  in  such  a 
case,  it  will  be  the  duty  of  the  Court  to  adhere  to  the 
Constitution,  and  to  declare  the  act  null  and  void.  The 
Constitution  is  ...  a  rule  and  commission  by  which 
both  Legislators  and  Judges  are  to  proceed.  ...  It  says 
to  the  legislators,  thus  far  ye  shall  go  and  no  further. 

A  foot-note  adds  that  a  writ  of  error  had  been 
taken  and  was  pending  in  the  Supreme  Court,  but  ap- 
parently it  never  came  to  argument.  In  U.  S.  v. 
Villato,41  also,  in  1797,  a  Pennsylvania  statute  con- 
cerning naturalization  was  held  void  by  the  Circuit 
Court,  as  being  in  violation  of  the  existing  State  Con- 
stitution. 

During  the  next  year  after  Van  Home  v.  Dorrance, 
the  question  of  the  Judicial  Power  reached  the  Su- 

40  See  ante,  pp.  134,  135- 
"2  Dallas,  370. 


JUDICIARY  TO  THE  CONSTITUTION  187 

preme  Court  for  the  first  time,  and  in  the  following 
four  years  there  were  two  other  such  cases, — making 
four  in  all  by  1800,  if  U.  S.  v.  Yale  Todd  be  included.  7  j/y,  % 
In  no  one  of  these  was  there  a  decision  of  the  point ; 
but  in  all  language  was  used  which  shows  how  the  doc- 
trine was  spreading  and  being  accepted  by  the  bench ; 
evidence  will  be  found,  too,  that  the  bar  as  well  was 
coming  to  be  saturated  with  the  same  belief,  and  was 
beginning  to  use  the  new  weapon  in  their  pleadings, 
and  in  general,  as  a  means  of  protecting  their  clients. 

The  first  case  was  Hylton  v.  The  United  States  42 
in  the  Circuit  Court  for  Virginia,  which  was  a  suit 
against  Hylton  for  his  neglect  to  return  one  hundred 
and  twenty-five  carriages  for  taxation  under  the  Act 
of  June  5,  1794.  A  case  stated  was  filed,  in  which 
it  was  agreed  that  Hylton  had  refused  to  return  the 
carriages,  "alledging  that  the  said  law  was  unconsti- 
tutional and  void,"  and  judgment  had  been  entered 
against  Hylton.  He  then  took  a  writ  of  error  to  this 
judgment,  and  the  case  was  argued  by  most  eminent 
counsel :  Lee,  Attorney-General,  and  Alexander  Ham- 
ilton, for  the  United  States,  and  Campbell,  of  Virginia, 
and  Jared  Ingersoll,  Attorney-General  of  Pennsyl- 
vania, for  Hylton.  The  decision  turned  on  the  point 
whether  or  not  the  tax  was  a  direct  one  under  the 
Constitution,  and  therefore  required  to  be  laid  accord- 
ing to  the  rule  of  apportionment.  The  Judges  were 
all  of  opinion  that  it  was  not  a  direct  tax,  and  was 
therefore  constitutionally  laid,  but  Paterson  wrote : 
"If  it  be  a  direct  tax,  it  is  unconstitutional,"  while 

^3  Dallas,  171. 


1 88  THE  RELATION  OF  THE 

Chase  did  not  think  it  a  direct  tax,  and  hence  regarded 
it  as 

unnecessary,  at  this  time,  for  me  to  determine  whether 
this  court  constitutionally  possesses  the  power  to  declare 
an  Act  of  Congress  void,  on  the  ground  of  its  being  made 
contrary  to,  and  in  violation  of  the  Constitution,  but  if 
the  Court  have  such  power,  I  am  free  to  declare,  that  I 
will  never  exercise  it,  but  in  a  very  clear  case. 

Hamilton  was  paid  a  fee  by  spcial  appropriation  of 
Congress,  "for  arguing  the  cause  before  the  Supreme 
Court  in  February  term,  1796,  respecting  the  consti- 
tutionality of  the  act  imposing  duties  on  carriages."  43 
Nor  should  it  go  unnoted  that  the  point  of  constitu- 
tionality was  here  again  evidently  used  by  counsel :  for 
it  cannot  be  doubted  that  professional  advice  led  to 
the  recital  in  the  case  stated  that  Hylton  had  declined 
to  return  the  carriages  for  taxation,  on  the  ground 
that  the  tax  violated  the  Constitution,  and  was  void. 
I  In  1798  the  question  of  the  Court's  powers  came 
up  once  more  in  the  Supreme  Court,  in  Calder  v. 
Bull.44  The  case  depended  on  a  statute  of  Connecti- 
cut, of  1795,  which  had  set  aside  a  decree  of  their 
Probate  Court  disapproving  a  certain  will,  and  had 
granted  a  new  hearing,  under  which  the  same  will  had 
been   approved.     Counsel   for  the   plaintiff   in   error 

43  Speech  of  Dana  on  the  repeal  of  the  Judiciary  Act  in  1802, 
"Annals  of  Congress,  7th  Congress,  1st  session,"  920-925.  Dana 
was  maintaining  the  power  of  the  Courts  and  using  this  fact  in 
the  connection.  He  said,  "the  principle  .  .  .  has  been  settled 
for  years."  Edwin  S.  Corwin's  "Doctrine  of  Judicial  Review," 
PP.  5o,  51. 

44  3  Dallas,  386. 


JUDICIARY  TO  THE  CONSTITUTION  189 

(against  the  will  admitted  at  the  second  hearing),  con- 
tended "that  any  law  of  the  Federal  Government,  or 
of  any  of  the  State  Governments,  contrary  to  the  I 
Constitution  of  the  United  States,  is  void;  and  that 
this  court  possess  the  power  to  declare  such  law  void/' 
But  Chase,  J.  wrote  in  evident  reply  to  this : 

Without  giving  an  opinion,  at  this  time,  whether  this  . 
court  has  jurisdiction  to  decide  that  any  law  made  by 
Congress,  contrary  to  the  Constitution  of  the  United 
States,  is  void ;  I  am  fully  satisfied  that  this  court  has  no 
jurisdiction  to  determine  that  any  law  of  any  State  Leg- 
islature, contrary  to  the  Constitution  of  such  state,  is 
void. 

This  was  in  substance,  it  seems,  the  opinion  of  the  *\s  , 
Court  in  general;  but  Iredell  was  so  clear  on  certain 
points  that  he  must  be  quoted,  and  it  is  to  be  regretted 
that  Judges  have  not  generally  remembered  what  he 
said.  Perhaps,  had  they  done  so,  and  thus  confined 
themselves  to  reasonable  and  fixed  grounds,  there 
would  not  to-day  be  such  a  hue-and-cry  against  their 
real  powers.  He  expressed  himself  as  of  opinion  that, 
if  a  Government  of  the  three  Departments  was  estab- 
lished by  a  Constitution,  which  imposed  no  limits  on 
the  legislative  power,  whatever  the  Legislature  might 
choose  to  enact  would  be  lawfully  enacted,  and  the 
Judiciary  could  never  interpose  to  declare  it  void. 
And  then  he  went  on : 

It  is  true,  that  some  speculative  jurists  have  held,  that 
a  legislative  act  against  natural  justice  must,  in  itself,  be 
void;  but  I  cannot  think  that,  under  such  a  government, 


190  THE  RELATION  OF  THE 

any  court  of  Justice  would  possess  a  power  to  declare  it 
so.  .  .  .  In  order,  therefore,  to  guard  against  so  great 
an  evil,  it  has  been  the  policy  of  all  the  American  states, 
which  have,  individually,  framed  their  state  constitutions 
since  the  revolution,  and  of  the  people  of  the  United 
States,  when  they  framed  the  Federal  Constitution,  to 
define  with  precision  the  objects  of  the  legislative  power, 
and  to  restrain  its  exercise  within  marked  and  settled 
boundaries.  If  any  Act  of  Congress,  or  of  the  Legisla- 
ture of  a  state,  violates  those  constitutional  principles,  it 
is  unquestionably  void;  though  I  admit,  that  as  the  au- 
thority to  declare  it  void  is  of  a  delicate  and  awful  nature, 
the  court  will  never  resort  to  that  authority,  but  in  a 
clear  and  urgent  case.  If,  on  the  other  hand,  the  Legis- 
lature of  the  Union,  or  the  Legislature  of  any  member 
of  the  Union,  shall  pass  a  law,  within  the  general  scope 
of  their  constitutional  power,  the  Court  cannot  pro- 
nounce it  to  be  void,  merely  because  it  is,  in  their  judg- 
ment, contrary  to  the  principles  of  natural  justice.  The 
ideas  of  natural  justice  are  regulated  by  no  fixed  stand- 
ard. 


Once  more,  in  the  last  year  of  the  century,  the 
question  was  under  consideration  in  the  Supreme 
Court,  but  again  failed  to  call  for  an  actual  decision. 
Cooper  v.  Telfair  45  was  a  suit  by  Cooper  of  Jamaica 
against  Telfair  of  Georgia,  on  a  bond  executed  by  the 
latter  in  1774.  Telfair  pleaded  the  Act  of  Georgia  of 
1782  for  the  confiscation  of  the  property  of  those 
guilty  of  treason, — which  expressly  named  Cooper, — 
and  that  by  a  later  law  of  Georgia,  of  1787,  the  amount 

45  4  Dallas,  14. 


JUDICIARY  TO  THE  CONSTITUTION  191 

of  the  bond  had  been  forfeited  to  the  State.  To  this 
Cooper  replied, — and  again  here  we  may  safely  as- 
sume that  we  have  an  instance  of  the  astuteness  of 
counsel, — that  he  had  never  been  tried  and  convicted 
or  attainted  of  treason,  and  that  by  the  Georgia  Con- 
stitution of  1777,  the  Legislative,  Executive,  and  Judi- 
ciary were  directed  to  be  kept  separate  and  distinct,  so 
that  neither  should  exercise  the  power  belonging  to 
the  other.  The  Court  below  held  this  reply  insuffi- 
cient, and  that  the  plea,  setting  up  the  confiscation, 
was  a  full  defense,  and  entered  judgment  for  the  de- 
fendant on  the  demurrer.  The  plaintiff  then  took  a 
writ  of  error,  and  set  up  that  the  judgment  held  that 
the  Legislature  had  cognizance  of  the  alleged  treason 
and  could  legally  convict  him. 

Upon  the  argument  in  the  Supreme  Court,  E. 
Tilghman  maintained : 

If  the  law  is  contrary  to  the  Constitution,  the  law  is 
void;  and  the  judiciary  authority,  either  of  the  state,  or 
of  the  United  States,  may  pronounce  it  to  be  so.  2  Dal- 
las, 308,  410.  3  Dallas,  383.46  The  law  is  contrary  to 
the  constitution,  inasmuch  as  it  is  an  exercise  of  the 
judicial  power  by  the  legislative  authority,  in  opposition 
to  an  express  prohibition  of  such  a  union  of  jurisdiction. 

Defendant's  counsel,  Ingersoll  and  Dallas,  "con- 
ceded that,  if  the  law  plainly  and  obviously  violates 
the  Constitution  of  Georgia,  it  is  void,"  but  contended 
that  it  did  not. 

The  judgment  below  was  affirmed,  Cushing  saying 
46  The  reference  to  3  Dallas  is  a  mis-citation. 


192  THE  RELATION  OF  THE 

that,  although  in  his  opinion  they  had  "the  same  power 
that  a  Court  of  the  state  of  Georgia  would  possess,  to 
declare  the  law  void,  I  do  not  think  the  occasion  would 
warrant  an  exercise  of  the  power" ;  while  Chase  wrote 
of  an  unconstitutional  law  being  void : 

Yet,  it  still  remains  a  question,  where  the  power  re- 
sides to  declare  it  void.  It  is,  indeed,  a  general  opinion, 
it  is  expressly  admitted  by  all  this  bar,  and  some  of  the 
Judges  have,  individually,  in  the  Circuit  Courts,  decided, 
that  the  Supreme  Court  can  declare  an  Act  of  Congress 
to  be  unconstitutional,  and  therefore,  invalid;  but  there 
is  no  adjudication  of  the  Supreme  Court  itself  upon  the 
point. 

True  though  these  last  words  were,  yet  all  the 
gathering  forces  and  all  the  signs  of  the  times  foretold 
plainly  enough  that  such  a  decision  of  the  highest  court 
was  near  to  hand ;  and  before  three  years  of  the  new 
century  had  gone  by,  Marbury  v.  Madison  arose,  and 
Marshall  received  for  his  opinion  perhaps  more  praise 
than  was  due,  but  still  it  was  written  with  all  the  clear 
reasoning  of  the  great  Chief  Justice,  and  has  never 
since  been  departed  from  among  us. 

Before  proceeding  to  it,  however,  it  will  be  well 
to  recall  to  the  reader  that  (as  others  have  already 
noticed)  the  Legislative  Department  had  passed  at 
least  one  law  directing  a  test  case  to  be  brought  before 
the  Judiciary,  in  order  to  ascertain  the  opinion  of  the 
highest  court  on  the  constitutionality  of  a  law.  This 
had  been  done  as  to  the  controverted  Pension  Law  of 
1792,  and  the  validity  of  decrees  made  by  the  judges 


JUDICIARY  TO  THE  CONSTITUTION  193 

sitting  as  commissioners  after  their  refusal  to  hear 
the  cases  as  a  court.47  Surely,  for  the  Legislature  to 
appeal  to  the  Judiciary  for  its  opinion  on  the  consti- 
tutionality of  a  law,  which  the  Legislature  has  itself 
enacted,  is  a  striking  example  of  the  recognition  of 
the  Judicial  Power. 

In  one  other  instance  the  Legislative  Department 
discussed  the  general  problem,  and  by  an  enormous 
preponderance  of  voices  added  its  evidence  to  the  proof 
that  the  Judiciary  did  rightfully  possess  the  power  it 
was  now  claiming  all  over  the  country.  In  1802,  upon 
the  repeal  by  the  triumphant  Republicans  of  the  Judi- 
ciary Bill,  which  they  feared  would  saddle  them  for 
many  years  with  the  Federal  Judges  appointed  in  such 
unbecoming  haste  in  the  last  days  of  John  Adams's 
presidency,  the  question  was  discussed  by  numbers  of 
Senators  and  Representatives  whether  or  not  such  a 
law  would  be  unconstitutional  and  could  be  held  void 
by  the  Judiciary.  The  debate  is  far  too  long  and 
scattering  to  be  gone  into  here,  but  Mason  of  Massa- 
chusetts; Tracy,  Dana,  and  Griswold  of  Connecticut; 
Gouverneur  Morris  of  New  York  (a  member  of  the 
Convention  of  1787)  ;  Ross  and  Hemphill  of  Pennsyl- 
vania; Bayard  of  Delaware;  Smith  of  Vermont;  John 
Rutledge  of  South  Carolina  (a  member  of  the  Con- 
vention of  1787) ;  Dennis  of  Maryland,  and  Hender- 
son and  Stanley  of  North  Carolina,  all  spoke  of  the 
doctrine  with  approval,  while  only  Stevens  T.  Masori 
of  Virginia,  Stone  of  North  Carolina,  and  Brecken- 

47  Ante,  p.  184. 


J 


194  THE  RELATION  OF  THE 

ridge  of  Kentucky  seem  to  have  been  on  the  other 
side.48 

To  indicate  how  fully  the  Judicial  Power  was  al- 
ready accepted,  it  may  be  stated  that  Hemphill  spoke 
in  this  early  debate  of  its  denial  as  "a  doctrine  new 
and  dangerous";  while  Henderson  said  that,  if  Con- 
gress can  repeal  the  Judiciary  Act,  the  Judiciary  are  in 
control  of  the  Legislature,  and 

/  Whatever  the  Legislature  declares  to  be  law  must  be 
obeyed.  The  constitutional  check  which  the  judges  were 
to  be  on  the  Legislature  is  completely  done  away.  They 
may  pass  ex  post  facto  laws,  bills  of  attainder.  .  .  .  The 
monstrous  and  unheard  of  doctrine  which  has  been  lately 
advanced,  that  the  judges  have  not  the  right  of  declaring 
unconstitutional  laws  void,  will  be  put  into  practice  by 
the  adoption  of  this  measure  [i.  e.,  by  the  repeal  of  the 
Judiciary  Act]. 

48  For  Henderson  and  Stanley,  see  Benton's  "Abridgment,"  Vol. 
II,  pp.  599,  and  601.  For  the  rest  see  "Review  of  Vol.  XII  of 
Sergeant  and  Rawle's  (Penna.)  Reports,"  and  especially  of 
Judge  Gibson's  denial  of  the  judicial  power  in  Eakin  v.  Raub 
reported  in  that  volume,  in  Amer.  Quar.  Review,  Vol.  II,  pp. 
186-214.  This  "Review"  was  said  by  Chas.  J.  Ingersoll  in  his 
speech  in  the  Pennsylvania  Constitutional  Convention  of  1838 
upon  the  repeal  of  bank  charters  to  be  by  Judge  Hopkinson, 
but  I  am  unable  to  demonstrate  that  such  was  the  case.  Judge 
Hopkinson's  grandson,  Edward  Hopkinson,  Esq.,  of  the  Phila- 
delphia bar,  tells  me  that  he  knows  nothing  in  regard  to  whether 
the  review  was  written  by  his  grandfather  or  not.  It  at  least 
certainly  came  from  an  able  pen.  The  fact  must  be  borne  in 
mind  that  partisanship  entered  strongly  into  the  debate.  I  used 
these  details  in  my  article  "Some  Recent  Attacks  on  the  Ameri- 
can Doctrine  of  Judicial  Power"  in  Amer.  Law  Rev.  (1906), 
Vol.  XL,  pp.  641-670:  see  especially,  p.  652.  I  have  not  verified 
the  list  of  names  of  the  author  of  the  "Review,"  but  the  words 
quoted  in  the  text  from  Henderson  are  taken  by  myself  from 
Benton's  "Abridgment." 


JUDICIARY  TO  THE  CONSTITUTION  195 

Here  was, — by  the  very  early  days  of  the  nineteenth 
century  and  within  fifteen  years  from  the  date  when 
the  Constitution  went  into  effect, — an  overwhelming 
mass  of  decision  and  opinion  asserting  the  power  of 
the  Judiciary  in  regard  to  unconstitutional  laws,  and 
there  was  extremely  little  contrary  opinion, — only 
some  scattering  views  of  individuals  and  a  few  con- 
tests made  in  the  Legislatures,  whose  possible  powers 
were  so  greatly  shorn  by  the  rapidly  growing  principle. 

And  the  decisions  made  covered  the  whole  field. 
They  were  not  at  all  confined  to  State  laws  violating 
the  Constitution  of  the  State  or  the  Federal  powers, 
but  laws  passed  by  Congress  without  authority  under 
the  Federal  Constitution  had  equally  been  held  in 
several  instances  to  be  subject  to  the  same  sifting 
process  in  the  Courts.  The  belief  in  this  latter  branch 
of  the  subject,  as  well  as  in  the  voidness  of  unauthor- 
ized State  laws,  was  well-nigh  universal,  and  rapidly 
coming  to  be  an  established  principle, — a  new  chapter 
of  the  law,  well  known  to  lawyers,  and  used  by  them 
in  the  study  and  preparation  of  their  cases. 

The  only  difference  still  existing  in  regard  to  un- 
authorized laws  of  the  Federal  Government  and  of 
the  States,  was  that  there  had  as  yet  been  no  decision 
in  the  former  class  of  cases,  in  the  highest  Court  of 
the  Union, — as  there  had  been  in  a  number  of  in- 
stances in  the  Supreme  Courts  of  the  States.  The 
Federal  decisions  were  all  as  yet  in  the  lower  Courts, 
but  this  difference  was  swept  away  as  early  as  1803 
by  Marbury  v.  Madison.  The  indications  had  been 
overwhelming  that  such  would  be  the  outcome,  as  the 


196  THE  RELATION  OF  THE 

principle  kept  spreading  steadily:  but  the  final  step 
came  perhaps  sooner  than  is  often  the  case  in  the 
evolution  of  governmental  principles. 

Marbury  v.  Madison  grew  out  of  a  partisan  quarrel. 
When  the  Federalists  were  defeated  in  the  election 
of  1800  and  Jefferson  was  elected  to  the  Presidency, 
the  defeated  party  aimed  to  fill  up  all  the  offices  with 
their  adherents,  and  this  was  perhaps  especially  the 
case  as  to  judicial  positions,  the  incumbents  of  which 
could  not  at  once  be  dismissed  by  the  incoming  Repub- 
licans. Down  to  the  very  end  of  his  term,  John 
Adams  was  making  appointments  to  vacant  and  new 
offices,  and  a  number  of  the  commissions  had  not  yet 
been  actually  delivered  when  he  went  out  of  office. 
Some  such  commissions  appointing  Justices  of  the 
Peace  for  the  District  of  Columbia  were  found  in  the 
Secretary  of  State's  Office  by  Madison,  the  incoming 
Secretary.     They  were  not  delivered  by  him. 

William  Marbury  and  three  others,  named  as  Jus- 
tices of  the  Peace  in  such  undelivered  commissions, 
thereupon  applied  in  December,  1801,  to  the  Supreme 
Court  of  the  United  States  for  a  writ  of  mandamus 
to  command  Madison  to  deliver  their  commissions  to 
them.  They  were  represented  by  Charles  Lee,  Attor- 
ney-General under  the  late  administration ;  their  claim 
being  that,  as  the  nominations  had  been  made  by  the 
President  and  approved  by  the  Senate,  and  commis- 
sions then  made  out  and  duly  recorded  in  the  State 
Department,  their  appointment  to  a  judicial  office  was 
complete,  and  the  commissions  must  be  delivered. 
The  delivery,  it  was  maintained,  was  a  mere  minis- 


JUDICIARY  TO  THE  CONSTITUTION  197 

terial  act,  to  which  the  Secretary  of  State  could  be 
compelled  by  judicial  process. 

No  one  appeared  or  argued  the  case  on  behalf  of 
the  defense,  as  the  administration  looked  upon  the 
proceeding  as  entirely  unauthorized,  and  declined  to 
recognize  it  in  any  way.  And  when  (in  accordance 
with  the  practice  in  cases  of  mandamus)  a  rule  on  the 
defendant  to  show  cause  why  the  writ  should  not  issue, 
was  granted,  Madison  took  no  notice  of  it  whatever. 

At  a  later  term,  on  final  hearing,  the  case  was  argued 
by  Lee  on  behalf  of  the  plaintiff  alone,  and  all  the 
main  contentions  of  the  plaintiff  were  sustained  by 
the  Chief  Justice  in  an  argument  of  no  little  length; 
but  the  opinion  did  not  stop  here.  It  went  on  to  show 
that  the  Supreme  Court  had  no  jurisdiction  at  all 
in  the  case,  owing  to  a  flaw  in  the  method  adopted  to 
get  at  the  result  desired.  It  was  true  that  the  law  of 
Congress  establishing  the  Courts  authorized  the  Su- 
preme Court 

to  issue  writs  of  mandamus,  in  cases  warranted  by  the 
principles  and  usages  of  law,  to  any  .  .  .  persons  hold- 
ing office,  under  the  authority  of  the  United  States. 

But  was  this  statute  authorized  under  the  terms  of 
the  Constitution,  which  provided  that 

The  Supreme  Court  shall  have  original  jurisdiction  in 
all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party. 
In  all  other  cases,  the  supreme  court  shall  have  appellate 
jurisdiction. 


198  THE  RELATION  OF  THE 

Could  Congress  confer  original  jurisdiction  on  the 
Supreme  Court  in  a  case  of  mandamus,  or  in  any  case, 
except  those  enumerated  by  the  Constitution? 

This  was  the  great  constitutional  question  which 
Marshall  discussed, — at  no  great  length, — and  reached 
the  conclusion  that  Congress  could  not  do  so,  that 
the  statute  conferring  original  jurisdiction  in  such 
case  was  unconstitutional  and  void.  The  rule  for  a 
mandamus  was  therefore  discharged  and,  so  far  as  is 
known,  no  further  proceedings  were  taken  in  the  mat- 
ter, despite  the  fact  that  Marshall  had  gone  so  far 
out  of  his  way,  into  the  regions  of  obiter  dicta*9  to 
indicate  the  proper  legal  method  of  raising  the  question 
that  the  plaintiffs  sought  to  have  determined. 

Marshall's  argument  on  the  constitutional  point  has 
been  the  subject  of  extravagant  praise  from  some, 
Kent 50  speaking  of  it  as  "approaching  to  the  precision 
and  certainty  of  a  mathematical  demonstration,"  but 
others  have  been  less  laudatory.  The  truth  is  that  not 
much  new  could  then  be  said  upon  the  subject,  for 
the  ground  had  often  been  covered  by  others.  The 
absolute  necessity  of  the  Judiciary's  having  the  power 
to  hold  laws  unconstitutional,  unless  our  written  Con- 
stitutions were  to  be  waste  paper  and  the  limitations 
to  fail  utterly,  was  palpable,  but  perhaps  a  strong  tech- 
nical argument  could  have  been  made  that  the  limita- 
tions were  directory  to  the  legislators,  and  merely 
binding    on    their    consciences, — as    are   undoubtedly 

40  Of  course,  the  Republicans  charged  him  with  partisanship, 
and  with  apparent  reason,  for,  when  a  court  once  decides  that 
it  has  no  jurisdiction,  it  has  no  further  function. 

""Commentaries,"  Vol.  I,  p.  453- 


JUDICIARY  TO  THE  CONSTITUTION  199 

many  of  the  very  similar  commands  contained  in  Con- 
stitutions. It  will  be  best  to  let  the  opinion  speak  for 
itself,  and  the  reader  will  certainly  find  in  it  the  clear 
and  logical  method  of  the  great  Chief  Justice,  what- 
ever else  may  be  said. 

The  Constitution,  he  wrote,  extends  the  judicial 
power  of  the  United  States  to  all  cases  arising  under  / 
the  Constitution,  and  then  he  asked  whether  it  could/ 
be  the  intention  that  in  such  cases  the  Constitution 
should  not  be  looked  into, — that  a  case  arising  under 
the  Constitution  shall  be  decided  without  examining 
the  instrument  under  which  it  arises?  "This  is  too 
extravagant  to  be  maintained."  The  oath  required 
of  the  Judges  was  also  borne  upon,  as  well  as  the 
immorality  of  imposing  it  on  them,  "if  they  were  to 
be  used  as  the  instruments,  and  the  knowing  instru- 
ments, for  violating  what  they  swear  to  support." 
But  the  following  seems  to  be  the  main  portion  of  his 
proof  of  "the  principle,  supposed  to  be  essential  to 
all  written  constitutions,  that  a  law  repugnant  to  the 
constitution  is  void;  and  that  courts,  as  well  as  other 
departments,  are  bound  by  the  instrument" : 

The  question,  whether  an  act,  repugnant  to  the  con- 
stitution, can  become  the  law  of  the  land,  is  a  question 
deeply  interesting  to  the  United  States ;  but,  happily,  not 
of  an  intricacy  proportioned  to  its  interest.  It  seems 
only  necessary  to  recognize  certain  principles,  supposed 
to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for 
their  future  government,  such  principles  as,  in  their  opin- 
ion, shall  most  conduce  to  their  own  happiness  is  the 


200  THE  RELATION  OF  THE 

basis  on  which  the  whole  American  fabric  has  been 
erected.  The  exercise  of  this  original  right  is  a  very 
great  exertion ;  nor  can  it,  nor  ought  it,  to  be  frequently 
repeated.  The  principles,  therefore,  so  established,  are 
deemed  fundamental.  And  as  the  authority  from  which 
they  proceed  is  supreme,  and  can  seldom  act,  they  are 
designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  govern- 
I  ment,  and  assigns  to  different  departments  their  respec- 
tive powers.  It  may  either  stop  here,  or  establish  certain 
limits  not  to  be  transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter 
description.  The  powers  of  the  legislature  are  defined 
and  limited;  and  that  those  limits  may  not  be  mistaken, 
or  forgotten,  the  constitution  is  written.  To  what  pur- 
pose are  powers  limited,  and  to  what  purpose  is  that 
limitation  committed  to  writing,  if  these  limits  may,  at 
any  time,  be  passed  by  those  intended  to  be  restrained? 
The  distinction  between  a  government  with  limited  and 
unlimited  powers  is  abolished,  if  those  limits  do  not  con- 
fine the  persons  on  whom  they  are  imposed,  and  if  acts 
prohibited  and  acts  allowed,  are  of  equal  obligation.  It  is 
a  proposition  too  plain  to  be  contested,  that  the  consti- 
tution controls  any  legislative  act  repugnant  to  it ;  or,  that 
the  legislature  may  alter  the  constitution  by  an  ordinary 
;act. 

Between  these  alternatives  there  is  no  middle  ground. 
The  constitution  is  either  a  superior  paramount  law,  un- 
changeable by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a 
legislative  act  contrary  to  the  constitution  is  not  law :  if 


JUDICIARY  TO  THE  CONSTITUTION  201 

the  latter  part  be  true,  then  written  constitutions  are 
absurd  attempts,  on  the  part  of  the  people,  to  limit  a 
power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitu- 
tions contemplate  them  as  forming  the  fundamental  and  j 
paramount   law   of   the   nation,   and,    consequently,    the  | 
theory  of  every  such  government  must  be,  that  an  act  of 
the  legislature,  repugnant  to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  consti- 
tution, and,  is  consequently,  to  be  considered,  by  this 
court,  as  one  of  the  fundamental  principles  of  our  so- 
ciety. 

With  this  decision  in  the  highest  court  of  the  coun- 
try, the  power  in  question  became,  in  fact,  settled. 
That  Marbury  v.  Madison  was  a  potent  factor  in  the 
history  of  the  matter  cannot  be  doubted ;  but  this  was, 
I  think,  owing  to  the  elevated  platform  from  which 
Marshall  spoke,  and  to  the  fact  that  the  decision  stood 
out  as  the  culmination  of  a  long  and  gradual  growth, 
rather  than  to  any  very  remarkable  power  of  argument 
contained  in  the  opinion. 

Since  the  decision  of  Holmes  v.  Walton  in  1780, 
the  power  of  the  Judiciary  has  been  exercised  in  our 
country  in  hosts  upon  hosts  of  cases.  Many  thousand 
State  laws  have,  beyond  doubt,  been  held  invalid  in 
the  States  themselves,  because  of  violating  either  the 
Constitution  of  the  State  in  question  or  that  of  the 
United  States.  By  191 2  as  many  as  223  State  laws 
and  23  municipal  ordinances  had  been  held  void  by 
the  Supreme  Court  of  the  United  States,  on  the  ground 


202  THE  RELATION  OF  THE 

that  they  conflicted  with  the  Federal  Constitution,  and 
33  laws  of  Congress  had  met  the  same  fate,  because 
they  were  held  not  to  be  authorized  under  that  instru- 
ment.51 These  cases,  too,  were  scattered  over  the 
whole  period  in  question,  though  by  far  the  greater 
number  of  those  in  relation  to  laws  of  the  United 
States  occurred  after  1830,  and  they  were  carried  into 
effect,  in  the  vast  majority  of  instances,  without  dis- 
pute. 

In  the  very  early  days  of  the  doctrine,  Trevett  v. 
Weeden  was  violently  denounced,  and  the  Judges  not 
reelected;  Rutgers  v.  Waddington  was  equally  de- 
nounced by  a  section  of  the  public;  Bayard  v.  Single- 
ton was  a  subject  of  earnest  dispute,  and  others  of  the 
earliest  cases  did  not  go  without  protest,  but  in  general 
the  exercise  of  the  Judicial  Power  was  readily  accepted 
or  even  welcomed. 

Of  course,  there  continued  to  be  for  a  number  of 
years  sporadic  expressions  of  opinion  to  the  contrary. 
Thus,  in  Pennsylvania  in  1808,  in  Emerick  v.  Harris,52 
it  was  strenuously  argued  before  the  Supreme  Court 
of  the  State,  by  very  eminent  counsel,  that  the  Judi- 
ciary did  not  possess  the  power  in  question,  and  the 
Court  went  into  an  argument  of  some  length  to  prove 
the  existence  of  such  power.  Again,  as  late  as  1843 
the  same  argument  was  once  more  made  in  Penn- 
sylvania, in  Commonwealth  v.  Mann.53    The  denial  of 

61 B.  F.  Moore's  "The  Supreme  Court  and  Unconstitutional 
Legislation"  (Columbia  College  Studies,  Vol.  54,  No.  2),  Chap- 
ter III.     The  author's  tables  include  decisions  rendered  in  191 1. 

"  1  Binney,  p.  416. 

**5  Watts  and  Sergeant,  p.  503. 


JUDICIARY  TO  THE  CONSTITUTION  203 

the  power  in  the  same  State  by  Judge  Gibson, — except 
so  far  as  related  to  State  laws  violating  the  Federal 
Constitution, — in  his  dissent  in  Eakin  v.  Raub54  in 
1825,  is  well  known,  but  this  very  able  Pennsylvania 
judge  recalled  this  opinion  in  1845  m  Menges  v.  Wert- 
man.55    Like  cases  probably  exist  in  other  States. 

In  the  earlier  years  of  the  nineteenth  century,  too, 
there  were  a  few  wide-extended  and  bitter  contests,.' 
more  or  less  of  a  political  nature,  over  the  question) 
in  several  of  our  States;  Ohio,  Georgia,  Kentucky,  | 
South  Carolina,56  and  perhaps  other  States,  were  the 
scenes  of  such  struggles.  But  in  all  these  instances, 
despite  the  fire  and  fury  which  accompanied  them,  not 
only  did  the  particular  decision  stand,  but  the  doctrine 
was  enforced  in  other  cases,  and  was  ere  long  generally 
recognized  to  be  established  law.  In  all  our  States,  as 
well  as  in  the  sphere  covered  by  the  United  States, 
the  Power  of  the  Judiciary  came  in  time  to  be  not  only 
accepted  but  to  be  appealed  to, — much  as  the  writ  of 
habeas  corpus  is  appealed  to, — as  a  palladium  of  our 
liberties.  The  contests  all  fell  by  the  wayside,  as  inci- 
dents of  little  moment,  while  the  public  accepted  more 

64 12  Sergeant  and  Rawle,  p.  330. 

65 1  Penna.  State  Reports,  p.  218.  See  also  Norris  v.  Clymer, 
2  ibid.,  p.  281. 

60  Some  account  of  these  contests  will  be  found  in  Baldwin's 
"American  Judiciary,"  pp.  111-16.  See  also  J.  B.  Thayer's 
"American  Doctrine,"  etc.,  Harvard  Law  Review,  Vol.  VII,  p. 
8,  etc.,  and  for  the  contest  in  Ohio,  see  Western  Law  Monthly 
(June,  1863),  Vol.  V,  p.  4,  etc.  For  the  contest  in  South  Caro- 
lina, I  can  give  no  certain  reference,  but  am  satisfied  that  in 
the  correspondence  of  Charles  Jared  Ingersoll  (M.  C.  1813-15) 
I  saw  a  letter  (dated  between  1818  and  1825?)  from  a  friend 
in  South  Carolina  who  had  been  in  Congress  with  him,  refer- 
ring to  the  dispute  there. 


204  THE  RELATION  OF  THE 

and  more  widely  the  view  that  a  statute  in  violation 
of  either  the  State  or  the  Federal  Constitution  is  void, 
and  that  it  is  the  function  of  the  Judiciary  so  to  decide 
in  any  law  case  depending  before  them.  The  una- 
nimity was  long  astonishing. 

For  this  very  reason,  the  outburst  of  recent  years 
against  our  well-established  doctrine  is  most  remark- 
able. Launched,  as  it  seems,  by  a  few  Progressives, 
it  was  beyond  doubt  the  expression  of  some  latent 
popular  feeling;  for  it  has  certainly  gained  strength, 
and  no  one  can  now  tell  what  the  outcome  may  be. 
There  is  a  wide-spread  feeling  in  the  body  politic  that 
constitutional  limitations  are  a  mere  hindrance,  and 
that  the  majority  voice  of  the  people  of  this  vast  coun- 
try should  have  undisputed  sway  in  all  things,  despite 
the  fact  that  the  limitations  were,  of  course,  written 
into  the  Constitution  for  the  express  purpose  of  curb- 
ing the  brute  majority,  and  in  order  to  protect  the 
rights  of  a  minority.  But  this  historic  truth  may  well 
in  the  end  go  for  nought,  in  a  time  when  our  country 
is  engaged  in  such  a  furious  war  as  that  of  to-day.  A 
body  composed  of  a  few  fallible  men  sitting  as  a  Court, 
and  perhaps  holding  unconstitutional  and  void  some 
vital  element  in  the  system  of  taxation  or  other  essen- 
tial branch  of  the  administration  of  a  great  Empire, 
might  be  very  inconvenient,  if  not  even  destructive,  in 
a  time  such  as  that  we  live  in. 

But  the  war  of  to-day  will  not  last  forever,  nor 
was  the  propaganda  started  with  it  in  view.  Probably, 
the  real  motive,  whether  conscious  or  unconscious,  of 
these  gentlemen  was  that  they  might  be  able  to  enact 


JUDICIARY  TO  THE  CONSTITUTION  205 

all  sorts  of  socialistic  legislation,  to  try  raw  experi- 
ments which  a  few  of  their  number  might  dream  out 
as  a  sure-cure  for  the  little  rubs  which,  under  the  ex- 
isting system,  do  undoubtedly  arise. 

Many  of  our  public  men,  and  even  of  our  most  J 
known  leaders,  have  for  a  number  of  years  shown  / 
the  tendency,  to  which  reference  has  been  already 
made,  to  be  highly  impatient  under  the  restrictions 
of  constitutional  or  legal  limitations.  These  restric- 
tions stand,  in  their  view,  for  mere  impediments  to 
be  gotten  rid  of,  in  order  that  they  may  work  out  with 
a  free  hand  any  pet  theory  of  the  moment.  And  this 
tendency  is  of  older  date  than  some  think.  Andrew 
Jackson  was  probably  the  first  of  our  Executives  to 
show  it ;  and  he  was  ever  convinced  that  his  pet  beliefs 
were  entitled  to  supreme  sway.  His  successors  for 
some  years  had  far  less  of  the  tendency;  but  in  modern 
days  it  has  grown  again  with  giant  strides,  and  now 
the  furious  war  of  the  Germans  has  added  an  enor- 
mous impetus. 

That  the  tendency  in  question  is  most  serious  and 
likely  to  have  far-reaching  consequences  in  many  ways 
is  certain;  but  in  regard  to  the  question  of  Judicial 
Power,  its  dangers  seem  more  menacing  and  perhaps 
more  imminent  than  in  other  directions.  A  highly 
progressive  member  from  a  new  Western  State  has  al- 
ready proposed  in  the  Senate  to  curb  the  Judicial 
Power  by  a  statute  providing  in  effect  for  the  removal 
of  any  Federal  Judge,  by  the  mere  passage  of  a  Con- 
gressional resolution  calling  upon  the  President  to 
nominate  his  successor.     Other  proposals  in  the  same 


206  THE  RELATION  OF  THE 

general  direction  have  also  been  made,  and  soon  after 
the  Civil  War  some  politicians,  who  were  displeased 
at  certain  decisions  of  the  Supreme  Court,  wanted  to 
require  two-thirds  of  the  Court,  in  order  to  hold 
an  act  of  Congress  void,  and  to  authorize  the  removal 
of  Judges  upon  legislative  address,  as  well  as  to  ap- 
point a  special  tribunal  to  decide  constitutional  ques- 
tions. But  none  of  these  plans  has  as  yet  had  any 
success.57 

We  have  lived  so  long  under  the  old  system,  and  our 
legislatures  had  come  to  depend  upon  it  so  generally, 
that  to  oust  the  historical  Judicial  Power  root  and 
branch,  even  though  it  were  done  gradually,  would 
probably  land  us  in  chaos.  It  would  take  many,  many 
years  for  the  hosts  of  American  law-makers  to  acquire 
the  habit  of  thinking  carefully  for  themselves  of  ques- 
tions of  constitutional  right, — even  assuming  that  they 
could  ever  do  so, — and  our  many  statute-books  would 
certainly  be  loaded  down  with  all  sorts  of  raw  statutes, 
not  half  thought  out  and  sure  to  be  very  unjust  to  in- 
dividuals. 

But  the  future  must  take  care  of  itself,  and  in  some 
way  our  country  may  yet  reach  a  safe  anchorage  and 
a  system  as  good  as, — or  better  than, — that  which  we 
have  known  in  our  day  by  a  happy  inheritance  from 
our  ancestors.  The  raw  methods  and  ideas  of  the 
Progressives  will  in  this  event  hardly  continue  to  be 

"  "Congressional  Record,  626.  Cong.,  First  Sess."  p.  3359- 
Ibid.,  "63d  Cong.,  First  Sess.,  H.  J.  Res,"  114.  Ibid.,  63d  Cong., 
First  Sess.,  p.  1052.  I  take  these  references  from  William  S. 
Carpenter's  "Judicial  Tenure  in  the  United  States"  (Yale  Uni- 
versity Press,  1918),  pp.  140-42. 


JUDICIARY  TO  THE  CONSTITUTION  207 

those  controlling  our  public  affairs,  even  if  this  faction 
should  succeed  in  breaking  down  much  that  we  in- 
herited, and  mortising  into  our  system  some  of  their 
socialistic  and  paternal-government  principles, — all, 
curiously  enough,  derived  in  the  main  from  the  system 
prevailing  in  the  German  Empire  under  the  benign 
rule  of  Bismarck  and  the  Hohenzollerns,  which  system 
we  and  other  nations  are  to-day  struggling  with  our 
utmost  power  to  break  down,  so  as  to  render  the  world 
"safe  for  Democracy." 


I 


CHAPTER  X 

THE  DEGREE  OF  CONCLUSIVENESS  ATTACHING  TO  JUDI- 
CIAL DECISIONS.  EARLY  BELIEFS  ON  THE  SUBJECT. 
THE  FUTURE. 

There  remains  one  other  very  important  subject  in 
relation  to  Judicial  Power,  of  which  it  is  my  intention 
to  treat  in  this  book, — though  by  no  means  exhaust- 
ively. That  would  lead  us  far  afield  and  touch  upon 
many  instances  reeking  with  partisanship,  and  hence 
would  be  very  likely  to  be  misleading.  Perhaps  the 
point  I  refer  to  may  be  indicated  by  the  question :  Is 
the  American  Doctrine  properly  described  as  of  Judi- 
cial Power,  or  of  Judicial  Supremacy? 

One  of  the  very  recent  books  upon  the  subject  is 
even  named  "The  American  Doctrine  of  Judicial 
Supremacy,"  and  there  can  be  no  shadow  of  doubt  but 
that  among  the  public  in  general,  as  well  as  by  many 
students,  the  view  is  absolutely  accepted  that  opinions 
of  the  Judiciary  bind  and  conclude  the  President,  Con- 
gress, and  all  the  rest  of  the  world.  When  the  Courts 
have  decided,  for  instance,  that  Congress  possesses, 
or  does  not  possess,  a  certain  power  under  the  clause 
to  regulate  commerce  among  the  States,  or  that  the 
President  can  be  deprived  of  his  unlimited  constitu- 
tional power  of  appointment  to  new  offices,  by  a  Con- 

208 


JUDICIARY  AND  CONSTITUTION      209 

gressional  statute  making  appropriations  for  certain 
work  "to  be  done  under  the  supervision  of"  So-and-So, 
there  is,  according  to  this  view,  no  question  but  that 
the  President  must  nominate  this  particular  person. 
So  Johnson's  right  to  refuse  to  obey  laws,  which  in 
his  opinion  impaired  his  constitutional  right  to  com- 
mand the  army,  or  his  right  of  removal  from  office, 
is  absolutely  denied  by  these  gentlemen. 

They  say  that  it  is  the  "peculiar  function"  of  the 
Judiciary  to  interpret  the  Constitution,  and  there  is 
undoubtedly  a  sense  in  which  these  words  are  true; 
but  such  general  phrases  are  likely  to  be  very  mis- 
leading, and  often  result  in  grave  error  when  applied 
to  all  circumstances.  One  well-known  author,  arguing 
that  decisions  of  the  Courts  are  conclusive  on  the  other 
departments,  writes  that 

The  authority  of  a  decision  .  .  .  comes  from  the  fact 
that  it  is  an  exercise  of  the  judicial  power  of  the  govern- 
ment in  a  case  for  the  disposal  of  which  this  judicial 
power  has  been  properly  invoked.1 

But  why  should  such  a  judicial  decision  carry  any 
more  weight,  in  regard  to  the  underlying  general  prin- 
ciple involved,  than  an  opposite  and  perhaps  earlier 
conclusion  of  Congress,  or  of  the  President,  rendered 
in  a  like  case  for  which  its,  or  his,  power  has  been 
properly  invoked?  The  special  controversy  of  the 
individuals  concerned  is,  of  course,  settled  and  ended 
by  the  judicial  decision;  but  why  should  this  be  car- 


1 «' 


'The    American    Judiciary,"    by    Simeon    E.    Baldwin,    pp. 
57,  58. 


210  THE  RELATION  OF  THE 

ried  to  the  extent  of  holding  that  the  opinion  of  the 
Court  as  to  the  meaning  of  the  Constitution  is  to  be 
accepted  as  a  finality  ? 

It  can  hardly  be  questioned, — and  later  pages  will 
demonstrate  this  fact, — that  in  all  our  history,  down 
at  least  to  comparatively  recent  years  (and  the  same 
view  is  still  held  by  not  a  few),  the  doctrine  was  by 
no  means  admitted  that  judicial  decisions  interpreting 
the  Constitution  conclude  the  other  great  departments 
of  government  in  regard  to  the  meaning  of  that  in- 
strument,— especially  when  the  extent  of  the  powers 
of  the  department  in  question  is  concerned.  They 
never  are  heard,  and  probably  have  not  even  the  poor 
right  to  be  heard,  upon  the  argument  of  the  litigation 
in  question.  How,  then,  has  it  come  to  be  thought,  in 
the  teeth  of  the  early  beliefs  and  of  a  long  line  of 
precedents,  that  they  are  concluded? 

The  growth  of  this  view  has  been  a  gradual  one, 
and  is  evidently  the  result  of  the  nature  and  method 
of  the  Judiciary's  functions.  The  Judiciary  have  un- 
doubtedly the  right,  and  it  is  their  peculiar  function,  to 
interpret  the  Constitution  in  law-suits  before  them,  in 
so  far  as  relates  to  the  rights  of  all  parties  litigant. 
The  very  purpose  of  their  existence  is  to  settle  dis- 
putes, and  prevent  violence  and  private  feuds  between 
citizens.  Their  decisions,  too,  become  quickly  "prec- 
edents" of  practically  binding  force,  so  far  as  relates 
to  the  rights  of  all  citizens,  and  this  additional  force 
accorded  to  their  interpretations  ever  tends  to  spread, 
have  wider  influence  and  to  be  accepted  by  all  the 


JUDICIARY  TO  THE  CONSTITUTION  211 

world,  much  as  if  their  interpretation  were  a  dictionary- 
clause  written  into  the  Constitution  or  statute. 

Nor  is  even  this  all  that  gives  strength  to  the  opin- 
ions of  the  Courts.  From  their  very  nature  and  method, 
they  have  the  most  persuasive  influence  on  all  the 
world.  The  earnest  effort  to  reach  an  impartial  con- 
clusion, the  extensive  arguments  of  counsel,  in  leading 
cases  sure  to  be  men  of  brilliant  intellect  and  of  vast 
experience,  who  have  ransacked  the  world  in  the  search 
for  knowledge  of  the  subject  from  all  points  of  view, 
and  the  carefully  weighed  decisions, — the  gist,  in  im- 
portant cases,  of  all  the  long  history  of  mankind, — 
properly  give  to  judicial  opinions  a  persuasive  weight, 
which  belongs  to  but  few  things  of  human  origin. 

But  it  does  not  follow  from  all  this  that  they  bind 
the  other  primordial  branches  of  the  Government;  that 
they  can,  for  instance,  conclude  the  President  as  to  a 
question  of  his  power,  under  the  terms  of  the  Constitu- 
tion, to  command  the  army  or  to  remove  from  office. 
The  written  Constitution  has  said  in  most  specific 
words  that  "the  President  shall  be  Commander-in- 
Chief  of  the  army,"  and  shall  have  the  right  to  appoint 
to  office,  and  again  (by  implication)  the  right  to  re- 
move from  office.  When,  then,  a  question  arises  as  to 
his  right  of  command  under  these  words,  or  as  to  his 
right  to  appoint  whom  he  pleases,  or  to  remove  at  will 
a  hostile  or  otherwise  uncongenial  officer,  he  must  de- 
cide for  himself  what  is  the  meaning  of  these  words 
of  the  Constitution,  precisely  as  the  Courts  must  do 
when  they  are  called  upon  in  a  suit  to  enter  a  decree 
concerning  the  rights  of  litigants  under  some  statute 


212  THE  RELATION  OF  THE 

and  these  or  other  words  of  the  Constitution.  To  ac- 
cept always  the  opinion  of  the  Judiciary  in  such  cases 
as  to  the  power  of  the  Executive,  or  of  Congress,  would 
accord  to  one  mere  department,  among  several  of  equal 
authority,  an  absolute  control  very  hostile  to  the  genius 
of  Anglo-Saxon  as  of  popular  government. 

This  question  of  the  right  of  the  different  govern- 
mental departments  to  act  for  themselves  within  the 
scope  of  their  authority,  as  each  may  understand  the 
constitutional  provisions,  is  not  confined  to  disputes 
between  the  Judiciary  and  some  other  coordinate 
branch,  but  is  a  general  one,  and  may  arise  between 
any  two  Departments,  or  between  the  branches  of  the 
Legislature,  as  well  as  in  other  instances.  The  same 
general  rule  ought  to  obtain  in  all  such  cases ;  and  the 
better  opinion  and  only  workable  theory  seems  clearly 
to  be  that  each  Department  or  agency  is  free, — in  ab- 
stract right  as  well  as  in  actual  fact, — to  proceed  upon 
its  own  interpretation  of  the  Constitution  and  under- 
standing of  the  circumstances.  That  they  have  this 
power  in  actual  fact  and  have  often  exercised  it  is 
certainly  true,  and  the  distinction  is  a  very  shadowy 
one,  which  concedes  this  truth,  and  yet  maintains  that 
theoretically  the  Department  concerned  is  obliged  to 
follow  the  expressed  opinion  of  some  other  Depart- 
ment. 

Numbers  of  instances  have  occurred  in  history,  in 
which  the  general  question  has  arisen.  When,  for  ex- 
ample, the  President  and  Senate  have  made  a  Treaty 
with  another  Power,  which  calls  for  a  money-payment 
by  us,  the  affirmative  action  of  the  House  of  Repre- 


JUDICIARY  TO  THE  CONSTITUTION  213 

sentatives  is  undoubtedly  essential  under  our  Constitu- 
tion to  the  payment  of  the  money  concerned.  Is  the 
House  in  such  a  case  obliged  in  right, — of  course,  it 
cannot  be  actually  compelled, — to  go  on  at  once  and 
make  the  necessary  appropriation,  or  has  it  the  con- 
stitutional right  to  consider  the  merits  of  the  question 
and  even  to  refuse  its  assent?  Has  it  any  discretion 
in  the  matter?  At  times,  the  former  theory  has  been 
strongly  asserted,  and  this  view  would  probably  still 
find  supporters ;  but  it  seems  that  the  prevailing  opinion 
to-day  is  to  the  contrary,  and  admits  that  the  House 
has  in  such  a  case  a  complete  right  to  consider  the 
merits  of  the  matter.2  At  the  time  of  the  purchase  of 
Alaska,3  this  seems  to  have  been  admitted,  and  it  has, 
I  think,  been  generally  admitted  since.  The  same  view, 
moreover,  prevails  in  England.4 

Again,  in  England  the  Legislative  Department  has 
always  been  very  determined  in  resisting  control  by 
the  other  branches,  and  the  privileges  of  Parliament 
largely  grew  up  through  repeated  struggles  with  the 

2 1  do  not  forget  that  national  faith  might  in  some  cases  make 
it  very  difficult  or  even  impossible  for  the  House  justly  to  re- 
fuse its  assent,  but  this  is  only  one  element  of  the  problem. 
The  treaty  power  is  a  very  difficult  subject,  and  especially  in 
recent  years  some  writers  have  claimed  almost  unlimited  author- 
ity under  the  right  to  make  treaties.  But  these  writers  claim 
too  much,  and  it  was  certainly  a  very  strange  course  for  the 
Constitutional  Convention  to  take  such  infinite  trouble  to  limit 
the  powers  of  the  proposed  government,  and  then  by  the  treaty 
power  to  confer  the  right  to  do  practically  anything. 

'Adams's  "Gallatin,"  p.   161. 

4Lecky's  "England,"  Vol.  I,  pp.  154-57.  Schouler's  "United 
States,"  Vol.  I,  pp.  308,  309,  and  note.  McMaster's  "United 
States,"  Vol.  II,  pp.  270-73. 


/ 


214  THE  RELATION  OF  THE 

Judiciary  and  the  Executive.5  The  Commons  never 
admitted  that  the  decrees  of  the  Judiciary  bound  them. 
On  the  contrary,  there  are  well-known  instances  in 
modern  times,  in  which  the  popular  branch  violently 
denounced  such  decrees  and  prevented  their  enforce- 
ment. 

These  were  cases  in  which  there  was  a  clash  be- 
tween some  privilege  claimed  by  the  Commons,  and 
the  ordinary  principle  that  a  judicial  decree  in  a  suit 
between  parties  is  final  and  must  be  enforced.  In  one 
of  the  cases,  for  example,  the  Courts  held  that  there 
was  a  private  libel  contained  in  the  Report  of  a  Com- 
mittee of  the  Commons,  published  by  the  latter' s  com- 
mand, and  a  judgment  was  accordingly  entered  against 
the  public  printer;  while  the  Commons,  on  the  other 
hand,  would  not  permit  this  judgment  to  be  executed, 
but  asserted  their  privilege,  that  it  was  for  them  to  de- 
cide what  it  was  proper  to  order  printed.6  Otherwise 
(such  was  doubtless  their  view),  they  could  not  legis- 
late intelligently  and  to  the  best  interests  of  the  public. 

Here  seems  to  be  a  strange  difference  of  view  and 
of  action  between  ourselves  and  the  country  from 
which  we  took  our  origin.  In  our  supposed  "turbu- 
lent" democracy,  the  decrees  of  the  Judiciary,  telling 
the  Legislature  or  the  Executive  the  limits  of  their 

6  See,  e.g.,  Hallam's  "Constitutional  History  of  England,"  Vol. 
I,  pp.  268-75,  302,  303:  Vol.  II,  pp.  43,  440  et  seq.:  Vol.  Ill,  pp. 
21  et  seq.,  27-32,  264  et  seq.,  271-74,  278. 

6  Stockdale  v.  Hansard,  9  Ad.  and  El.,  i;  11  Ad.  and  El.,  253, 
273,  297;  Wason  v.  Walter,  L.R.  4  Q.B.  73;  Hallam's  "Const. 
Hist,"  etc.,  Vol.  Ill,  pp.  271-84;  Campbell's  "Life  of  Brougham," 
Chap.  228  (Ed.  Estes  &  Lauriat,  Boston,  1875,  PP-  49J-93)  J 
May's  "Constitutional  History  of  England,"  Vol.  I,  pp.  423-26. 


JUDICIARY  TO  THE  CONSTITUTION  215 

powers,  are  apparently  to  be  accepted  absolutely,  at 
once,  and  with  docility ;  while  in  the  limited  monarchy, 
the  Parliament,  and  more  especially  the  Commons, ■ 
burst  out  into  a  fury  of  turbulence  and  of  excessive 
passion  when  the  Courts  render  a  decree  trenching 
upon  an  action  of  the  Commons.  How  did  this  differ- 
ence come  about,  and  what  was  the  origin  of  the  belief 
in  Judicial  Supremacy  held  to-day  by  many  in  our 
country  ? 

There  were,  of  course,  in  the  early  days  of  the  doc- 
trine all  manner  of  doubts  and  difficulties,  and  some 
curious  and  interesting  opinions  were  expressed.  Thus, 
Iredell  wrote  in  1786,  in  his  Letter  of  an  "Elector,"  / 
rather  taking  the  view  that  the  Judges,  should  they  / 
enforce  an  unauthorized  statute,  would,  perhaps,  be 
incurring  some  serious  liability.  To  quote  his  as- 
sertion : 

The  judges,  therefore  must  take  care  at  their  peril, 
that  every  act  of  Assembly  they  presume  to  enforce  is 
warranted  by  the  constitution,  since  if  it  is  not,  they  act 
without  lawful  authority.7 

On  the  other  hand,  the  erratic  Judge  Chase,  of  the 
United  States  Circuit  Court,  in  the  very  same  breath 
in  which  he  wrote  in  1800  that  an  unconstitutional 
statute  was  void,  went  on8  to  say : 

Yet,  it  still  remains  a  question  where  the  power  resides 
to  declare  it  void.  It  is,  indeed,  a  general  opinion,  it  is 
expressly  admitted  by  all  this  bar,  and  some  of  the  Judges 

7  Quoted  ante,  p.  112. 

8  Cooper  v.  Telfair,  4  Dallas,  14.     See  ante,  pp.  190-192. 


216  THE  RELATION  OF  THE 

have,  individually,  in  the  Circuit  Courts,  decided,  that 
the  Supreme  Court  can  declare  an  act  of  Congress  to  be 
unconstitutional,  and,  therefore,  invalid;  but  there  is  no 
adjudication  of  the  Supreme  Court  itself  upon  this  point. 

Chase's  colleague,  Cushing,  was,  on  the  other  hand, 
already  of  opinion  that  they  did  have  the  power.  This 
same  question  had  been  touched  upon,  too,  in  the  Pen- 
sion Cases  in  1792,  and  the  partisan  Aurora,9  which 
supported  the  refusals  of  the  Judges  to  act  under  the 
statute  there  in  question,  stated  that  the  opponents  of 
Judicial  Power  admitted  that,  according  to  their  view, 
there  was  no  agency,  short  of  a  Constitutional  Conven- 
tion, which  could  decide  a  statute  unconstitutional. 

Here  was  almost  a  reductio  ad  absurdum,  and  here 
we  may  doubtless  find  one  of  the  controlling  reasons 
why  the  Courts  took  up  the  power.  As  has  been  said 
before  in  these  pages,  and  as  thousands  have  clearly 
seen,  unless  they  had  done  so,  all  the  carefully  drawn 
provisions  and  restrictions  of  the  Constitution  would 
have  been  futile,  and  the  discretion  of  Congress  have 
become  our  only  Constitution.  The  absolute  necessity 
of  the  case  was  palpable,  and  it  is  not  characteristic 
of  a  competent  people  to  draw  up  an  elaborate  instru- 
ment and  then  fail  to  find  a  means  to  enforce  it.  Prior 
pages  have  shown,  too,  many  other  tendencies  in  our 
earlier  history,  which  pointed  clearly  to  the  conclusion 
to  which  our  ancestors  came  upon  this  point. 

At  the  same  time,  while  some  held  these  doubts  in 
the  early  days  under  our  present  Constitution,  there 

9  Aurora  (Philadelphia),  April  20,  1792.     See  ante,  p.182. 


JUDICIARY  TO  THE  CONSTITUTION  217 

was  no  dream  on  the  part  of  our  Courts  of  claiming 
what  has  since  come  to  be  called  "Judicial  Supremacy."  / 
When  they  began  to  decide,  with  no  little  hesitation,  / 
that  in  a  law-suit  pending  before  them  they  could  hold 
a  statute  unconstitutional  and  hence  refuse  to  enforce 
it,  they  were  very  careful  not  to  assert  even  a  Judicial 
Superiority.  As  it  was,  they  were  charged  with  "dis- 
pensing with  laws,"10 — a  very  unpopular  relic  of  the 
Stuart  kings.  Supremacy  was  not  in  their  dreams,  and 
equality  was  all  they  claimed, — that,  as  they  were  one 
of  the  great  primordial  Departments  established  by  the 
Constitution,  it  could  not  be  their  duty  to  accept  slav- 
ishly and  against  their  clear  convictions  of  the  mean- 
ing of  the  instrument,  the  conclusion  of  a  partisan 
majority  of  the  legislature  that  it  had  power  to  pass  a 
law,  for  example,  depriving  a  citizen  of  his  property 
without  a  trial  by  jury.  "The  obligation  of  their  oaths  I 
and  the  duty  of  their  office"  was  much  borne  upon 
in  the  anxious  opinion  in  Bayard  v.  Singleton. 

In  one  of  the  earliest  cases,  too,  one  of  the  judges 
wrote  that  he  did 

not  consider  the  judiciary  as  the  champions  of  the  people 

or  of  the  constitution,  bound  to  sound  the  alarm  and  to 

excite  an  opposition  to  the  Legislature.     But  when  the 

causes  of  individuals  are  brought  before  the  judiciary, 

they  are  bound  to  decide. 

And  if  one  man  claim  under  an  act  contrary  to  the 

constitution,  that  is,  under  what  is  no  law  (if  my  former 

position  that  the  Legislature  can  not  impugn  the  consti- 

10  In  North  Carolina,  at  the  time  of  Bayard  v.  Singleton.  See 
Battle's  "Address  on  the  History  of  the  Supreme  Court,"  printed 
in  103  North  Carolina,  pp.  445  et  seq.;  470,  471. 


218  THE  RELATION  OF  THE 

tution,  and  consequently  that  an  act  against  it  is  void,  be 
just)  must  not  a  court  give  judgment  against  him?11 

At  a  much  later  date,  this  limited  view  of  their 
power  was  still  held,  and  the  matter  was  thus  summed 
up  by  an  able  pen  (perhaps  Judge  Hopkinson)  in  1827, 
nearly  fifty  years  after  the  first  decision  of  the  kind 
was  rendered: 

We  must  always  bear  in  mind,  that  the  judiciary  do 
not  claim  a  right  directly  to  annul  an  Act  of  the  Legisla- 
ture, by  virtue  of  a  superior  or  superintending  power 
over  that  department.  .  .  .  No  such  interference  with 
the  legislature  is  pretended — no  such  superiority  over 
them  claimed.  But  when  the  judiciary  are  called  upon 
to  execute  the  illegal  act — to  become  parties  auxiliaries 
to  the  usurpation,  they  may,  not  as  a  superior,  but  as  a 
coordinate  branch  of  the  government,  refuse  their  par- 
ticipation in  the  wrong.12 

Other  citations  to  this  same  general  effect,  from 
judicial  decisions  and  from  writers  of  authority,  could 
probably  be  found,  but  the  following  only  will  be 
quoted.  It  comes  from  a  "Note"  to  the  case  of  White 
v.  Kendrick13  in  South  Carolina  in  1805.  The  un- 
known author,  after  speaking  of  its  being  plainly  the 
power  and  duty  of  courts  to  declare  void  all  laws  con- 
trary to  the  Constitution,  goes  on : 

u  Nelson,  in  Kamper  v.  Hawkins,  2  Virginia  Cases,  p.  201. 

"Article  already  cited  from  an  anonymous  writer  in  The 
Amer.  Quarterly  Review  for  1827,  Vol.  II,  pp.  186,  etc.,  213. 
See  ante,  p.  194, 

14  1  Brevard  p.  469. 


JUDICIARY  TO  THE  CONSTITUTION  219 

This  right  implies  no  superiority  of  the  judiciary  to  the 
legislative  power.  Each  department  of  the  government 
is  the  constitutional  judge  of  its  own  powers ;  each  within 
its  own  sphere.  The  legislative  body  may  enact  a  law, 
which  they  may  conceive  to  be  constitutional,  but  the 
judiciary  may  refuse  to  execute  it,  if  they  believe  it  is 
not  so. 

How,  then,  did  the  belief  in  Judicial  Supremacy 
originate?  It  is  curious  to  find  that  in  1802  it  was 
threatened  by  an  orator  in  Congress,  as  likely  to  grow 
out  of  the  very  modest  claims  then  making  for  that 
branch  of  government. 

To  quote  Stevens  T.  Mason  when,  in  1802,  he  spoke 
on  the  proposed  repeal  of  the  Judiciary  Act: 

They  [the  judges]  may,  as  gentlemen  have  told  us,  hold 
the  constitution  in  one  hand,  and  the  law  in  the  other, 
and  say  to  the  Departments  of  Government,  so  far  shall 
you  go  and  no  farther.  This  independence  of  the  Judi- 
ciary so  much  desired,  will,  I  fear,  sir,  if  encouraged  or 
tolerated,  soon  become  something  like  supremacy.14 

The  earliest  approach  to  a  claim  of  judicial  finality 
known  to  me  is  to  be  found  in  a  statement  of  Madi- 
son's, that  at  the  time  of  the  Alien  and  Sedition  Acts, 

the   principle   was   asserted  .  .  .  that   a   sanction   given 

to  the  Acts  by  the  supreme  judicial  tribunal  of  the  Union 

was  a  bar  to  any  interposition  whatever  on  the  part  of 

the  States,  even  in  the  form  of  a  legislative  declaration 

that  the  acts  in  question  were  unconstitutional.15 

"Benton's  "Abridgment,"  Vol.  II,  pp.  556,  557. 
18  Paper  of  1836  on  "Nullification,"  in  "Works,"  by  Congress, 
1865,  Vol.  IV,  p.  396;  and  see  pp.  403,  404,  509. 


22o  THE  RELATION  OF  THE 


But,  whatever  partisanship  there  may  have  been  in 
this  contention,  probably  the  real  origin  of  it,  and  of 
the  claim  in  general  for  Judicial  Supremacy,  is  to  be 
found  in  the  nature  of  the  action  of  the  Judiciary. 

One  phase  of  this  has  already  been  referred  to,  but 
there  is  another.  The  vast  majority  of  instances  come 
to  that  branch  for  final  governmental  action.  Congress 
passes  a  tax-law,  the  Treasury  proceeds  to  carry  it 
out,  and,  in  case  there  is  a  dispute  as  to  the  power, 
the  Judiciary  is  then  called  upon,  and  its  action  in 
such  cases  must  end  the  matter,  unless  some  other 
Department  undertakes  very  unusual  methods.  Prob- 
ably the  great  majority  of  laws  find  their  final  execu- 
tion in  this  way  at  the  hands  of  the  Courts, — all  the 
vast  mass  of  legislation  relating  to  contracts,  deeds, 
wills,  promissory  notes,  corporations,  and  the  thousand 
other  matters  which  concern  the  usual  routine  of  busi- 
ness affairs  and  of  domestic  relations. 

In  all  these  cases,  the  world  at  large  inevitably  grows 
used  to  looking  to  the  Courts  for  the  settlement  of  the 
meaning  of  statutes  and  of  the  Constitution.  Their 
interpretation,  so  far  as  each  particular  case  is  con- 
cerned, is  at  once  accepted.  It  touches  in  its  immediate 
effect  only  the  citizen,  and  there  is,  hence,  no  one  who 
can  contest  it.  Their  opinion,  too,  is  soon  applied  in 
other  cases  and  thus  quickly  acquires  the  weight  that 
belongs  to  precedents  in  Anglo-Saxon  countries.  The 
world  soon  comes  to  look  upon  their  interpretation  as 
a  part  of  the  statute  itself. 

It  should  be  remembered,  however,  that  the  force 


JUDICIARY  TO  THE  CONSTITUTION  221 

accorded  by  us  to  precedents  does  not  by  any  means 
essentially  and  everywhere  belong  to  them.     In  the  f 
Civil  Law,  generally,  the  rule  is  very  different;  and 
Sir  Henry  Maine  tells  us16  that  in  Rome,  where  the 
magistrates  held  office  for  but  one  year : 

The  decision  of  a  Roman  tribunal,  though  conclusive  in 
the  particular  case,  had  no  ulterior  authority  except  such 
as  was  given  by  the  professional  repute  of  the  magistrate 
who  happened  to  be  in  office  for  the  time.  Properly 
speaking,  there  was  no  institution  at  Rome  during  the 
republic  analogous  to  the  English  bench. 

But  custom  has  with  us  greatly  changed  this  view 
of  Ancient  Law,  and  precedents  have  acquired  a  vast 
authority.  Growing,  as  they  do,  step  by  step,  and  acted 
upon  in  a  thousand  cases  in  the  relations  of  men, — 
voluntarily  as  well  as  under  the  advice  of  counsel, — 
they  naturally  acquire  great  influence,  and  all  the  world 
tends  to  feel  that  they  are  final.  Even  the  other  co- 
ordinate Departments, — endowed  though  they  are  with 
equal  authority  by  the  instrument  that  created  all, — 
are  necessarily  subject  to  this  same  tendency  and  in 
cases  where  the  passions  are  not  blazing  up,  and  where 
their  exercise  of  powers  expressly  conferred  upon  them 
is  not  concerned,  are  pretty  certain  to  look  to  the  rul- 
ings of  the  Courts  for  their  guide. 

The  busy  officer,  harassed  by  responsibility  and  the 
opposing  contentions  of  parties  interested,  is  often  only 
too  glad  thus  to  lean  upon  the  Judiciary,  and  to  find  dif- 
ficult questions  solved  for  him.  And  every  time  that  an 

18  "Ancient  Law,"  1st  edition,  pp.  34,  35. 


) 


222  THE  RELATION  OF  THE 

Executive  officer  does  in  this  way  appeal  to  the  rulings 
of  the  Courts  and  base  himself  upon  their  authority, 
he,  of  course,  aids  in  the  growth  of  Judicial  Authority 
and  even  the  establishment  of  their  Supremacy.  Man 
lives  by  custom  and  quickly  falls  into  ruts. 

But,  at  the  same  time,  nearly  all  through  our  history, 
there  has  been  a  series  of  instances  in  which  the  Ex- 
ecutive (the  Legislature  less  frequently)  has  declined 
to  accept  the  opinion  of  their  sister  department  as  con- 
clusive and  as  binding  upon  them.  These  have  gen- 
erally, but  not  always,  been  cases  in  which  the  final 
step  in  the  procedure  in  hand  was  to  be  taken  by  the 
Executive;  and  the  question  could  not  then,  in  the 
ordinary  course  of  affairs,  be  brought  before  the  Judi- 
ciary. 

If  the  President  thinks,  as  Monroe  did  in  a  contro- 
versy with  the  Senate,17  that  he  has  the  right  under  the 
Constitution  to  appoint  whom  he  pleases  to  an  office 
newly  created  in  the  army,  he  will  of  course  do  so, 
and  the  Judiciary  cannot  interfere.  Monroe  did  so 
think,  and  wrote: 

If  the  law  imposed  such  restraint  [limiting  his  choice 
to  a  certain  class],  it  would  in  that  case  be  void. 

The  actual  controversy  here  was  with  the  Senate 
and,  though  proceedings  to  raise  the  question  before 
the  Courts  were  impossible,  the  case  furnishes  an  in- 
stance of  our  system  of  checks  and  counter-checks; 
for  the  Senate  persistently  refused  to  confirm  the  ap- 
pointments, and  Monroe  was,  hence,  compelled  to  yield 

"Niles's  Register,  Vol.  XXII,  pp.  406,  407,  411,  415,  423. 


JUDICIARY  TO  THE  CONSTITUTION  223 

this  point.  But  in  another  controversy  in  the  same 
matter,  turning  on  the  question  of  the  President's  right 
to  transfer  officers  from  one  corps  to  the  same  grade 
in  another  corps,  confirmation  by  the  Senate  not  being 
necessary,  Monroe  carried  his  point  and  made  the 
transfers. 

Nor  was  this  claim  of  Monroe's  an  isolated  instance 
in  which  the  Executive  had  simply  gone  askew;  but 
the  like  claim  has  been  made  in  a  number  of  cases 
by  our  Presidents,  though  not  to  my  knowledge  within 
fifty  years,  as  well  as  by  many  of  our  leading  men. 
Of  our  Presidents,  in  addition  to  Monroe,  Jefferson, 
Madison,  Jackson,  Van  Buren,  Lincoln,  and  Johnson 
were  all  either  engaged  in  such  contests  or  asserted  the 
view  that  the  opinions  of  the  Judiciary  were  not  con- 
clusive, and  some  students  of  the  Constitution  still  to- 
day maintain  this  opinion  of  our  earlier  years. 

These  precedents  and  opinions  of  our  leading  men 
must  be  to  some  extent  examined  here,  and  it  will  be 
found  that  they  not  only  reach  back  to  our  earliest 
days  but  are  quite  occasionally  to  be  met  in  our  history, 
down  to  at  least  shortly  after  the  Civil  War.18 

Hamilton  wrote  in  No.  XLIX  of  the  Federalist  that 
frequent  recurrence  should  be  had  to  the  people,  not 
only  to  alter,  when  necessary,  the  powers  of  govern- 
ment, 

18  Many  of  the  instances  and  opinions  cited  have  already  been 
used  in  my  articles  on  "The  Relation  of  the  Judiciary  to  the 
Constitution,"  in  American  Law  Review  (March- April,  1885), 
Vol.  XIX,  pp.  175-203,  and  on  "The  Independence  of  the  De- 
partments of  Government,"  in  ibid.,  Vol.  XXIII,  pp.  594-609. 


N 


N 


224  THE  RELATION  OF  THE 

but  also  whenever  any  one  of  the  departments  may  com- 
mit encroachments  on  the  chartered  authorities  of  the 
others.  The  several  departments  being  perfectly  coordi- 
nate by  the  terms  of  their  common  commission,  neither 
of  them,  it  is  evident,  can  pretend  to  an  exclusive  or 
superior  right  of  settling  the  boundaries  between  their 
respective  powers;  and  how  are  the  encroachments  of 
the  stronger  to  be  prevented,  or  the  wrongs  of  the  weaker 
to  be  redressed,  without  an  appeal  to  the  people  them- 
1  selves ;  who,  as  the  grantors  of  the  commission,  can  alone 
declare  its  true  meaning,  and  enforce  its  observance? 

And  again  in  No.  LI  of  the  same  treatise  upon  the 
Constitution,  Hamilton  wrote  upon  the  general  subject 
as  follows: 

To  what  expedient  then  shall  we  finally  resort,  for 
maintaining  in  practice  the  necessary  partition  of  power 
among  the  several  departments,  as  laid  down  in  the  con- 
stitution ?  The  only  answer  that  can  be  given  is,  that  as 
all  these  exterior  provisions  are  found  to  be  inadequate, 
the  defect  must  be  supplied,  by  so  contriving  the  exterior 
structure  of  the  government,  as  that  its  several  constitu- 
ent parts,  may,  by  their  mutual  relations,  be  the  means 
of  keeping  each  other  in  their  proper  places.  .  .  . 

But  the  great  security  against  a  gradual  concentration 
of  the  several  powers  in  the  same  department,  consists 
in  giving  to  those  who  administer  each  department,  the 
necessary  constitutional  means,  and  personal  motives,  to 
resist  encroachments  of  the  others.  The  provision  for 
defense  must  in  this  as  in  all  other  cases,  be  made  com- 
mensurate to  the  danger  of  attack.  Ambition  must  be 
made  to  counteract  ambition.  The  interest  of  the  man 
must  be  connected  with  the  constitutional  rights  of  the 


JUDICIARY  TO  THE  CONSTITUTION  225 

place.  ...  In  framing  a  government,  which  is  to  be  ad- 
ministered by  men  over  men,  the  great  difficulty  lies  in 
this :  you  must  first  enable  the  government  to  control  the 
governed ;  and  in  the  next  place,  oblige  it  to  control  itself. 

Madison,  also,  wrote  at  some  length  upon  the  general 
subject  in  1834,  and  summed  up  admirably  the  whole 
truth.    The  entire  letter  follows : 

Dear  Sir:  Having  referred  to  the  Supreme  Court  of 
the  United  States  as  a  constitutional  resort  in  deciding 
questions  of  jurisdiction  between  the  United  States  and 
the  individual  States,  a  few  remarks  may  be  proper, 
showing  the  sense  and  degree  in  which  that  character 
is  more  particularly  ascribed  to  that  department  of  the 
government. 

As  the  legislative,  executive,  and  judicial  departments 
of  the  United  States  are  coordinate,  and  each  equally 
bound  to  support  the  constitution,  it  follows  that  each 
must,  in  the  exercise  of  its  functions,  be  guided  by  the 
text  of  the  constitution  according  to  its  own  interpreta- 
tion of  it ;  and  consequently,  that  in  the  event  of  irrecon- 
cilable interpretations,  the  prevalence  of  the  one  or  the 
other  department  must  depend  on  the  nature  of  the  case, 
as  receiving  its  final  decision  from  one  or  the  other,  and 
passing  from  that  decision  into  effect,  without  involving 
the  functions  of  any  other. 

It  is  certainly  due  from  the  functionaries  of  the  several 
departments  to  pay  much  respect  to  the  opinions  of  each 
other;  and  as  far  as  official  independence  and  obligation 
will  permit,  to  consult  the  means  of  adjusting  differences 
and  avoiding  practical  embarrassments  growing  out  of 
them,  as  must  be  done  in  like  cases  between  the  coordi- 
nate branches  of  the  legislative  department. 


226  THE  RELATION  OF  THE 

But"  notwithstanding  this  abstract  view  of  the  coordi- 
nate and  independent  right  of  the  three  departments  to 
expound  the  constitution,  the  judicial  department  most 
familiarizes  itself  to  the  public  attention  as  the  expositor, 
by  the  order  of  its  functions  in  relation  to  the  other 
departments ;  and  attracts  most  the  public  confidence  by 
the  composition  of  the  tribunal. 

It  is  the  judicial  department  in  which  questions  of  con- 
stitutionality, as  well  as  of  legality,  generally  find  their 
ultimate  discussion  and  operative  decision ;  and  the  public 
deference  to  and  confidence  in  the  judgment  of  the  body 
are  peculiarly  inspired  by  the  qualities  implied  in  its  mem- 
bers; by  the  gravity  and  deliberation  of  their  proceed- 
ings; and  by  the  advantage  their  plurality  gives  them 
over  the  unity  of  the  executive  department,  and  their 
fewness  over  the  multitudinous  composition  of  the  legis- 
lative department. 

Without  losing  sight,  therefore,  of  the  coordinate  rela- 
tions of  the  three  departments  to  each  other,  it  may  al- 
ways be  expected  that  the  judicial  bench,  when  happily 
filled,  will  for  the  reasons  suggested,  most  engage  the 
respect  and  reliance  of  the  public  as  the  surest  expositor 
of  the  constitution,  as  well  in  questions  within  its  cogni- 
zance concerning  the  boundaries  between  the  several  de- 
partments of  the  government  as  in  those  between  the 
Union  and  its  members.19 

James  Wilson,  another  leading  man  in  drafting  our 
Constitution,  wrote  in  1790-91 : 

The  independency  of  each  power  [or  department  of 
government]  consists  in  this,  that  its  proceedings,  and  the 
motives,  views,  and  principles,  which  produce  those  pro- 

"  "Works"  by  Congress  (1865),  Vol.  IV,  p.  349- 


JUDICIARY  TO  THE  CONSTITUTION  227 

ceedings,  should  be  free  from  the  remotest  influence, 
direct  or  indirect,  of  either  of  the  other  two  powers.  But 
further  than  this,  the  independence  of  each  power  ought 
not  to  extend.  Its  proceedings  should  be  formed  without 
restraint,  but  when  they  are  once  formed,  they  should  be 
subject  to  control.  .  .  . 

We  are  now  led  to  discover,  that  between  these  three 
great  departments  of  government,  there  ought  to  be  a 
mutual  dependency,  as  well  as  a  mutual  independency. 
We  have  described  their  independency;  let  us  now  de- 
scribe their  dependency.  It  consists  in  this,  that  the  pro- 
ceedings of  each,  when  they  come  forth  into  action  and 
are  ready  to  affect  the  whole,  are  liable  to  be  examined 
and  controlled  by  one  or  both  of  the  others.20 

And,  as  if  to  show  beyond  the  shadow  of  a  doubt 
the  broad  principle  that  was  in  his  mind  in  penning 
these  words,  Wilson  had  already  said  in  the  Ratifying 
Convention  of  Pennsylvania,  immediately  after  refer- 
ring to  the  Judiciary's  right  to  refuse  to  carry  out  an 
unconstitutional  law: 

In  the  same  manner  the  President  of  the  United  States 
could  shield  himself  and  refuse  to  carry  into  effect  an  act 
that  violates  the  constitution.21 

There  could  not  possibly  be  a  clearer  assertion  of  the 
doctrine,  which  these  pages  seek  to  maintain.  Wilson 
applied  precisely  the  same  rule  of  general  independence 
to  the  Executive,  as  that  which  he  applied  to  the  Judi- 
ciary.    Beyond  peradventure,  he  was  of  opinion  that 

80  "Lectures  on  Law,"  in  "Works,"  Vol.  I,  pp.  409-11. 
21  "Pennsylvania  and  the  Federal   Convention,"  by  McMaster 
and  Stone,  pp.  304-05. 


I 


228  THE  RELATION  OF  THE 

each  Department  had  the  right  to  interpret  the  Con- 

I  stitution  for  itself,  when  called  upon  to  act  officially, 

/  and  he  by  no  means  admitted  that  the  other  Depart- 

'   ments  must  accept  the  decisions  of  the  Judiciary  as 

fixing  the  meaning  of  the  Constitution. 

Jefferson,  as  is  well  known,  instructed  Madison  to 
refuse  to  recognize  the  jurisdiction  of  the  Supreme 
Court  in  Marbury  v.  Madison,  and  himself  declined  to 
obey  a  subpoena  duces  tecum  in  the  Burr  trial;22  and 
his  general  opinion  is  well  set  forth  in  the  following 
words :    In  suits  before  them,  he  wrote,  the  judiciary 

of  course  decide  for  themselves.  The  constitutional 
validity  of  the  law  or  laws  again  prescribing  executive 
action,  and  to  be  administered  by  that  branch  ultimately 
and  without  appeal,  the  executive  must  decide  for  them- 
selves also  whether  under  the  constitution  they  are  valid 
or  not. 

And  further  on,  to  make  still  more  clear  his  meaning 
that  each  Department  has  the  right  to  adhere  to  and 
defend  its  construction,  he  adds : 

It  may  be  said  that  contradictory  decisions  may  arise  in 
such  cases  and  produce  inconvenience.  This  is  possible 
and  is  a  necessary  failing  in  all  human  proceedings.23 

Jefferson's   opinion  was   identical   with   that   just 

shown  to  have  been  Wilson's. 

Chief  Justice  Marshall  also  held  this  view,  so  usual 

MVan   Buren's   "Political   Parties   in   the   United    States,"   pp. 
283-86,  291-93,  304. 
M  Quoted  in  "Johnson's  Impeachment,"  Vol.  II,  p.  163. 


JUDICIARY  TO  THE  CONSTITUTION  229 

in  the  early  days  of  our  country.  In  his  famous  speech 
in  the  Senate,  in  the  case  of  Thomas  Nash,  he  con- 
tended that  the  case  was  one  for  Executive  and  not 
for  Judicial  decision,  and  said  that  he 

admitted  implicitly  the  division  of  powers  stated  by  the 
gentleman  from  New  York  [Livingston?]  and  that  it 
was  the  duty  of  each  department  to  resist  the  encroach- 
ments of  the  others.24 

Attorney-General  Wirt  in  1824  gave  an  opinion  to 
the  First  Comptroller  of  the  Treasury,  in  which  much 
the  same  view  was  again  asserted.  The  Commission- 
ers under  the  Treaty  with  Spain  had  awarded  a  sum 
of  money  to  one  Cathcart,  but  certain  persons  claim- 
ing to  be  his  assignees  filed  a  bill  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Columbia, 
and  obtained  an  injunction  forbidding  the  Federal  of- 
ficials from  paying  over  the  money  to  any  one  but  them. 
Under  these  circumstances,  Wirt  wrote : 

My  opinion  is  that  the  judiciary  can  no  more  arrest 
the  executive  in  the  execution  of  a  law,  than  they  can 
arrest  the  legislature  itself  in  passing  the  law.  ...  It  is, 
therefore,  in  my  opinion,  essential  to  the  government 
itself  to  assert,  for  the  executive  branch,  this  independent 
action. 

But  at  the  same  time  he  thought  there  were  cases, 
and  this  was  one,  in  which  the  Executive  would  do 
well  to  respect  the  opinion  of  the  Judiciary,  and  he 
accordingly  recommended  forbearance  until  the  Court 

34  Quoted  in  5  Wheaton,  Appendix,  p.  15. 


23o  THE  RELATION  OF  THE 

should  decide  the  question;  but  that  the  jurisdiction 
of  the  Court  should  not  be  recognized  by  appearing  to 
the  suit  as  parties.25 

President  Jackson's  action  is  also  well  known.  Not 
only  did  he  refuse  to  aid  in  the  execution  of  the  judg- 
ment of  the  Supreme  Court  in  Worcester  v.  Georgia,28 
and  the  judgment  thus  remained  of  no  effect, — but  he 
vetoed  the  bank  bill  of  1832,  on  the  ground  that  there 
,was  no  constitutional  power  to  create  a  bank,  despite 
ithe  fact  that  the  Supreme  Court  had  decided  that  the 
bank  about  to  expire  and  proposed  to  be  continued 
was  constitutional.27  Van  Buren,  who  became  Jack- 
son's successor  as  President,  and  who  was  a  member 
of  the  Cabinet  at  this  time,  agreed  with  Jackson  as 
to  his  powers,  and  remained  of  the  same  opinion  many 
years  later.28 

President  Buchanan's  opinion  is  not  altogether  clear, 
though  in  one  instance  he  asserted  quite  decidedly  the 
views  I  have  quoted  from  numbers  of  authorities.  In 
his  inaugural  address,29  when  a  decision  in  the  Dred 

""Opinions  of  the  Attorneys  General,"  Vol.  I,  pp.  681-686. 
See  also  Taney's  opinion  in  1832  in  the  matter  of  the  jewels  of 
the  Princess  of  Orange,  ibid.,  Vol.  II,  pp.  482-493  and  496-99. 

M6  Peters,  p.  515.  This  seems  to  many  a  very  ultra  action  on 
Jackson's  part,  but  possibly  it  was  partly  based  on  the  proba- 
bility that  to  execute  the  decree  would  lead  to  civil  war. 

"Webster  argued  against  the  action  of  the  President  in  1832, 
maintaining  apparently  that,  as  the  chief  purpose  of  the  law  was 
to  continue  the  existing  bank  for  a  further  period,  and  as  the 
Supreme  Court  had  decided  the  existing  bank  to  be  constitu- 
tional, the  President  had  no  rightful  discretion  to  veto,  because 
a  bank  was  in  his  opinion  unconstitutional.  See  my  article  on 
the  "Relation  of  the  Judiciary,"  etc.,  in  American  Law  Review, 
Vol.  XIX  (March-April,  1885),  p.  196. 

MVan  Buren's  "Political  Parties,"  Caps.  VI  and  VIII. 

29  Curtis's  "Life,"  Vol.  II,  p.  189. 


JUDICIARY  TO  THE  CONSTITUTION  231 

Scott  case  was  awaited,  he  seems  perhaps  to  have 
leaned  rather  strongly  on  the  views  of  the  Judicial 
Department,  but  this  may  possibly  have  been  owing 
to  an  eager  desire  to  see  the  slavery  question  settled, 
rather  than  to  any  belief  in  that  Department's  peculiar 
function  to  interpret. 

At  a  shortly  later  time,  when  President,  he  took  quite 
a  different  view.  Congress  had  passed  a  law  contain- 
ing an  appropriation  for  the  completion  of  the  Wash- 
ington aqueduct,  to  be  expended  according  to  the  plans  / 
and  estimates  of  a  certain  officer  (naming  him),  and  1 
under  his  superintendence.  When  the  bill  came  to 
Buchanan  for  signature,  he  sent  a  special  message30 
to  Congress,  objecting  to  the  above  features  as  an  in- 
fringement of  his  rights,  and  announcing  that  he 
should  consider  the  naming  of  the  particular  officer  by 
Congress  merely  as  a  recommendation.  He  then  signed 
the  bill,  but  did  not  appoint  the  officer  named  by  Con- 
gress to  the  office  in  question.  This  officer  thereupon 
sent  a  memorial  to  the  Executive,  objecting  to  his 
non-appointment  in  accordance  with  the  terms  of  the 
Act,  and  Attorney-General  Black  wrote  an  opinion 
upon  the  case. 

Black  was  of  opinion  that,  as  commander-in-chief, 
it  was  the  President's  right  to  decide  what  officer 
should  perform  any  particular  duty,  and  that  as  su- 
preme executive  magistrate,  the  President  had  the 
power  of  appointment.    In  continuation  he  said : 

Congress  could  not,  if  it  would,  take  away  from  the 
President,  or  in  any  wise  diminish  the  authority  conferred 
80  Henry's  "Messages  of  President  Buchanan,"  pp.  269-71. 


27,2  THE  RELATION  OF  THE 

upon  him  by  the  Constitution.  .  .  .  Congress  is  vested 
with  legislative  power;  the  authority  of  the  President  is 
executive.  Neither  has  a  right  to  interfere  with  the  func- 
tions of  the  other.  Every  law  is  to  be  carried  out  so  far 
forth  as  is  consistent  with  the  Constitution,  and  no  fur- 
ther. The  sound  part  of  it  must  be  executed,  and  the 
vicious  portion  of  it  suffered  to  drop.81 

Lincoln,  also,  of  our  Presidents,  wrote  very  plainly 
to  the  same  general  effect  in  one  instance,  and  I  do  not 
know  of  any  opinion  from  him  to  the  contrary.  In 
his  first  inaugural,  he  expressed  himself  as  follows, 
with  evident  reference  to  the  Dred  Scott  decision : 

I  do  not  forget  the  position  assumed  by  some  that  con- 
stitutional questions  are  to  be  decided  by  the  Supreme 
Court,  nor  do  I  deny  that  such  decisions  must  be  binding 
upon  the  parties  to  that  suit :  while  they  are  also  entitled 
to  very  high  respect  and  consideration  in  all  parallel  cases 
by  all  the  departments  of  the  government.  .  .  .  [But  the 
candid  citizen  must  confess  that]  if  the  policy  of  the 
government  upon  the  vital  questions  affecting  the  whole 
people  is  to  be  irrevocably  fixed  by  the  decisions  of  the 
Supreme  Court,  the  moment  they  are  made,  as  in  ordinary 
cases  between  parties  in  personal  actions,  the  people  will 
have  ceased  to  be  their  own  masters,  having  to  that  extent 
resigned  their  government  into  the  hands  of  that  eminent 
tribunal. 

n  "Opinions  of  the  Attorneys  General,"  Vol.  IX,  pp.  463-75. 
About  twenty  years  later  (1882)  a  precisely  like  provision  was 
inserted  in  the  Sundry  Civil  Bill  in  relation  to  the  proposed  new 
Pension  Building,  but  in  this  instance  the  bill  was  signed  with- 
out objection  and  the  officer  indicated  in  the  act  was  appointed. 


JUDICIARY  TO  THE  CONSTITUTION  233 

But  the  contest  between  Johnson  and  the  leaders 
of  the  majority  in  Congress,  after  the  Civil  War,  is  the 
instance  in  our  history  in  which  the  question  we  are 
concerned  with  met  with  the  most  elaborate  considera- 
tion. Congress  had  passed  a  law  on  March  3,  1865, 
which  was  approved  by  Lincoln,  providing  that  assist- 
ant assessors  of  internal  revenue  should  be  appointed 
by  the  assessors,  and  repealing  all  laws  inconsistent 
therewith.  Such  assessors  had  theretofore  been  ap- 
pointed by  the  Secretary  of  the  Treasury,  under  the 
Act  of  June  30,  1864. 

When  Johnson  came  into  office  after  Lincoln's  death, 
he  evidently  wanted  to  make  these  appointments,  but 
the  Act  of  March  3,  1865,  seemed  to  stand  in  the  way. 
Attorney-General  Speed  thereupon  gave  it  as  his  opin-j 
ion  that  the  attempt  by  that  statute  to  vest  the  appoint-' 
ment  in  the  assessors  was  clearly  unconstitutional,  and 
that  as  the  former  method  of  appointment  by  the  Sec- 
retary of  the  Treasury,  under  the  Act  of  June  30,  1864, 
was  repealed  by  the  Act  of  1865,  there  was  no  statute 
in  effect  providing  a  method  for  their  appointment. 
Speed  was  of  opinion  that  the  assistant  assessors  were 
"officers,"  within  the  meaning  of  clause  2,  section  2 
of  Article  II  of  the  Constitution,  and  that  the  right  of 
appointing  them  hence  devolved  upon  the  President. 
He  adds  that  the  right  should  be  exercised  by  him, 
despite  the  fact  that  by  the  Act  of  1865  Congress  had 
distinctly  declared  their  will  to  be  that  he  should  not 
appoint  the  assistant  assessors. 

It  is  to  be  noted,  however,  that  the  course  of  action 


234  THE  RELATION  OF  THE 

advised  by  Speed  was  apparently  intended  by  him  to 
lead  up  to  a  judicial  decision  of  the  question,  in  a  con- 
test between  an  appointee  of  the  President  and  one 
appointed  by  the  assessor  under  the  provisions  of  the 
Act  of  1865.  It  seems,  therefore,  that  while  Speed 
did  not  hold  that  the  President  must  slavishly  enforce 
all  statutes  on  the  book,  he  yet  took  a  view  of  the  chief 
question  far  removed  from  that  hereinbefore  quoted 
from  a  number  of  earlier  authorities. 

As  the  partisan  contest  between  Johnson  and  the 
leaders  opposed  to  him  went  on,  the  quarrel  grew  more 
and  more  bitter,  until  at  length,  after  Johnson  had 
refused  to  obey  some  of  the  utterly  unjustifiable  and 
even  revolutionary  statutes  driven  through  Congress 
over  his  veto  by  the  majority  leaders,  still  flaming  with 
the  passions  of  the  Civil  War  and  absolutely  deter- 
mined to  rule,  they  brought  into  the  House  articles  of 
impeachment  against  him.  The  chief  issues  involved  in 
the  trial  before  the  Senate  grew  out  of  laws  which 
Johnson  held  to  have  infringed  his  constitutional  right 
to  command  the  army  and  his  right  to  remove  from 
office. 

The  constitutional  right  of  the  President  to  adhere 
to  his  understanding  of  the  language  of  the  Constitu- 
tion, and  to  necessary  inference  therefrom  in  regard 
to  his  powers,  and  to  refuse  to  obey  a  statute  taking 
such  powers  from  him,  was  the  subject  of  wide  dis- 
cussion; and  the  right  to  refuse  to  obey  was  claimed 
for  him,  in  a  greater  or  less  degree,  by  every  one  of 
his  counsel  and  by  several  of  the  Senators  who  voted 


JUDICIARY  TO  THE  CONSTITUTION  235 

for  acquittal.32  Again  here,  as  in  the  case  of  Speed's 
opinion,  much  was  said  by  counsel  and  others,  of  the 
refusal  to  obey  being  a  step  leading  up  to  a  judicial 
decision;  but  it  may  probably  be  supposed  that  this 
grew  largely  out  of  the  tact  of  the  advocate  who  does 
not  want  in  matters  of  difficulty  to  claim  more  than 
the  needs  of  his  case  require.  Johnson  had,  moreover, 
throughout  the  contest  maintained  that  his  course  was 
based  on  that  idea. 

It  was  during  the  same  memorable  quarrel  between 
Congress  and  President  Johnson  that  Gideon  Welles 
had  a  conversation  with  Grant,  who  had  recently  been 
appointed  Secretary  of  War,  which  is  noteworthy  and 
may  even  show  how  the  ancient  belief  was  possibly 
at  that  time  being  substituted  by  the  new.  Welles 
spoke  of  the  differences  between  Congress  and  the 
President,  and  records  that  he  was  pained  to  see  how 
little  Grant  knew  of  the  Constitution  and  our  Gov- 
ernment. Grant  said  of  the  "Reconstruction"  law  that 
Congress  had  enacted  it,  and  the  President  must  ex- 
ecute it.  "If  the  law  was  unconstitutional,"  he  said, 
"the  judges  alone  could  decide  the  question.  The 
President  must  submit  and  obey  Congress  until  the 
Supreme  Court  set  the  law  aside."     I  asked  him,  so 

"  See,  in  the  volumes  of  the  Impeachment  Trial,  the  arguments 
of  Curtis,  Vol.  I,  pp.  386-88;  Nelson,  Vol.  II,  pp.  160-68;  Groes- 
beck,  Vol.  II,  pp.  108-200;  Evarts,  Vol.  II,  pp.  292-97,  320-21; 
Stanbery,  Vol.  II,  pp.  373"76,  382-83;  and  the  opinions  of  Buck- 
alew,  Vol.  Ill,  p.  232;  Doolittle,  ibid.,  p.  246;  Henderson,  ibid., 
pp.  303-04;  Grimes,  ibid.,  pp.  337-38;  Johnson,  ibid.,  pp.  55-57J 
Vickers,  ibid.,  p.  117;  Davis,  ibid.,  p.  170,  172-73,  176-77 ;  Fowler, 
ibid.,  p.  207.  Sumner  and  Patterson,  also,  admitted  the  Presi- 
dent's right  to  refuse  to  execute  laws  palpably  violating  the  Con- 
stitution;  ibid.,  pp.  273  and  312. 


236  THE  RELATION  OF  THE 

Welles  goes  on,  if  Congress  could  exercise  powers 
not  granted,  powers  expressly  reserved  to  the  States, 
which  made  the  Constitution.  Grant  replied  that  "Con- 
gress might  pass  any  law,  and  the  President  and  all 
others  must  obey  and  support  it  until  the  Supreme 
Court  declared  it  unconstitutional."33 

A  few  theoretical  writers, — who  have  studied  the 
question  under  the  diffused  light  coming  from  all 
sources,  and  in  its  manifold  relations, — may  also  be 
cited  here.  Still  more  holding  distinctly  the  same 
.  view  could  be  found,  and  at  the  same  time  many  others, 
who  hold  much  the  same  confused  opinions  which 
Welles  gives  us  from  a  great  soldier.  Bancroft,  who 
\  had  studied  our  history  from  its  beginnings,  and  had 
written  on  the  Constitution  itself,  evidently  by  no 
means  accepted  the  belief  in  Judicial  Finality.  Towards 
the  end  of  his  long  life,  he  wrote: 

The  decision  of  that  court  in  all  cases  within  its  juris- 
diction is  final  between  the  parties  to  the  suit  and  must 
be  carried  into  effect  by  the  proper  officers;  but,  as  an 
interpretation  of  the  constitution,  it  does  not  bind  the 
President  or  the  Legislature  of  the  United  States.  .  .  . 
[After  referring  to  the  fact  that  the  irreversibility  of 
their  decisions  attaches  only  to  the  parties  to  the  suit, 
and  that  society  submits  in  order  to  escape  from  daily 
anarchy]  :  To  the  decision  of  an  underlying  question  of 
constitutional  law,  no  such  finality  attaches.  To  endure 
it  must  be  right.     If  it  is  right,  it  will  approve  itself  to 

""The  Diary  of  Gideon  Welles,"  Vol.  Ill,  pp.  176-180,  cited 
in  Andrew  C.  McLaughlin's  "The  Courts,  The  Constitution,  and 
the  People,"  pp.  59-60. 


JUDICIARY  TO  THE  CONSTITUTION  237 

the  universal  sense  of  the  impartial.  .  .  .  An  act  of  the 
Legislature  at  variance  with  the  constitution  is  pro- 
nounced void ;  an  opinion  of  the  Supreme  Court  at  vari- 
ance with  the  constitution  is  equally  so.34 

Professor  Thayer,  too,  of  Harvard,  wrote,  in  words 
that  sum  up  clearly  enough  the  reason  for  the  origin  of 
our  Courts'  action,  yet  at  the  same  time  words  that  do 
not  at  all  recognize  their  conclusive  effect  on  all  the 
world : 

Again,  where  the  power  of  the  judiciary  did  have 
place,  its  whole  scope  was  this ;  namely,  to  determine,  for 
the  mere  purpose  of  deciding  a  litigated  question  prop- 
erly submitted  to  the  court,  whether  a  particular  disputed 
exercise  of  power  was  forbidden  by  the  constitution.35 

Finally,  Professor  McLaughlin,  of  the  University 
of  Chicago,  writing  as  late  as  191 2,  by  no  means  ac- 
cepts the  doctrine  of  Judicial  Supremacy.  On  the  con- 
trary, he  is  of  opinion  that  the  Courts  have  no  special 
powers  in  the  matter,  and  are  "only  exercising  their 
freedom  within  their  own  province"  when  they  hold 
a  law  unconstitutional.    At  the  same  time,  he  writes : 

Possibly  American  constitutional  law  has  grown  away 
from  its  early  conditions;  the  principle  of  separation  and 
of  judicial  independence,  not  judicial  superiority,  was 
beyond  question  distinctly  put  forth  by  the  judges  in  the 
early  cases,  and  on  that  basis  the  courts  did,  as  a  his- 

84  "History  of  the  Constitution,"  Vol.  II,  pp.  198,  202,  203. 
w  "American  Doctrine  of  Constitutional  Law,"  in  Harvard  Law 
Review,  Vol.  VII,  p.  9. 


238  THE  RELATION  OF  THE 

torical  fact,  act  and  assume  authority  to  deny  the  validity 
of  legislation.36 

And  he  recognizes  fully  the  view  that  these  pages 
have  shown  was  held  by  so  many  of  our  earlier  leaders, 
and  even  the  right  of  the  President  to  refuse  to  be 
bound  by  an  unconstitutional  Act  of  Congress.37 

From  all  that  precedes,  it  is  amply  apparent  that 
Judicial  Supremacy  had  no  place  in  the  beliefs  of  the 
Founders  and  of  their  successors,  for  a  number  of 
years.  The  Judiciary  was  at  that  time  far  too  weak 
to  make  such  a  claim,  and  would  merely  have  brought 
ridicule  on  itself  by  so  doing.  Nor  did  any  one  else, 
so  far  as  I  know,  make  the  claim  on  their  behalf.  In- 
deed, they  felt  most  strongly  the  need  of  showing 
some  foundation  for  their  mere  action  in  declining  to 
enforce  a  statute,  and  they  largely  found  their  jus- 
tification in  insisting  that,  under  our  written  Constitu- 
tions, they  were  a  coordinate  Department. 

What  was  to  be  the  indirect  result  of  their  action  in 
a  long  course  of  years  they  did  not  discuss  and  prob- 
ably did  not  consider.  Men  rarely  do  look  far  ahead, 
for  the  simple  reason  that,  owing  to  their  limitations, 
they  cannot  do  so.  The  Courts  in  those  early  cases 
merely  decided  that,  as  they  were  one  of  the  great  co- 
ordinate branches  of  Government,  with  functions  as 
clearly  set  forth  by  the  written  Constitution  as  were 
those  of  the  Legislature  or  the  Executive,  they  must 

M  Andrew  C.  McLaughlin's  "The  Courts,  The  Constitution, 
and  The  People,"  pp.  62  et  seq.  See  Chapter  III  generally  for  the 
history  of  the  matter  and  the  author's  general  opinion. 

37  Ibid.,  p.  62,  footnote. 


JUDICIARY  TO  THE  CONSTITUTION  239 

exercise  the  powers  confided  to  them,  and  could  not  be 
called  upon,  against  their  clear  convictions,  to  aid  in 
carrying  out  a  law  of  Congress  which  they  held  to  be  a 
plain  violation  of  the  fundamental  instrument.  They 
would  probably  have  equally  conceded  the  same  right 
to  the  other  Departments,  when  these  were  in  turn 
called  upon  to  assist  the  Judiciary.  Such  was,  at  least, 
the  necessary  result  of  their  arguments  to  justify  their 
own  action. 

That  all  this  has  perhaps  been  immensely  changed 
in  the  years  that  have  elapsed  since  our  beginnings,  is 
too  plain  for  discussion,  let  alone  for  doubt.  Possibly 
our  historical  growth  in  the  matter  has  gone  so  far 
as  to  justify  the  use  of  the  term  "Judicial  Supremacy." 
Some  think  so,  and  not  a  few  would  probably  even 
accept  the  opinions  which  Grant  expressed  to  Welles. 
But  constitutional  doctrines  deriving  their  origin  in 
such  a  manner,  by  very  slow  growth  against  a  view 
generally  accepted  at  an  earlier  date,  and  against  what 
seems  surely  to  be  the  true  theory  of  the  matter,  are  al- 
ways nebulous  for  many,  many  years,38  and  may  even 
be  rejected  at  a  very  late  date. 

In  relation,  then,  to  the  question  of  what  is  the  true 

doctrine  of  Judicial  Power  in  our  country,  there  is 

88  As  late  as  185 1  Disraeli  thought  that  the  veto  of  the  Crown 
had  not  lapsed  by  disuse,  but  that  an  occasion  might  arise  "when, 
supported  by  the  sympathies  of  a  loyal  people,  its  exercise  might 
defeat  an  unconstitutional  Ministry  and  a  corrupt  Parliament." 
"Life,"  by  Monypenny  and  Buckle,  Vol.  Ill,  p.  321.  The  ques- 
tion, too,  of  the  circumstances  under  which  the  Lords  were  con- 
stitutionally obliged  to  yield  to  the  insistence  of  the  Commons 
upon  a  special  measure,  though  it  was  widely  asserted  that  there 
was  such  an  obligation,  was  never  settled  until  the  statute  of  a 
few  years  ago. 


240  THE  RELATION  OF  THE 

certainly  still  the  gravest  doubt.  Many  hold  that  the 
decrees  of  the  Judiciary  are  absolutely  final,  and  must 
be  accepted  by  all, — Departments  of  Government,  as 
well  as  individuals ;  but  not  a  few  writers  are  still  to  be 
found,  who  deny  any  such  conclusion,  and  in  a  number 
of  instances,  down  to  within  about  half  a  century,  lead- 
ing officials  have  spoken  and  even  officially  acted 
against  it.  And  very  recently  quite  a  school  has  sprung 
up,  which  denies  not  only  Supremacy  to  Judicial  deci- 
sions, but  denies  even  their  right  to  hold  any  law  un- 
constitutional,— at  least,  any  law  passed  by  Congress. 
It  still  remains  to  the  future  to  show  whether  grad- 
ual historical  growth  has  established  the  doctrine  of 
Judicial  Supremacy  in  our  country,  or  whether,  with 
the  immensely  grown  power  of  our  Executive,  and  per- 
haps under  the  inducements  of  the  terrible  death-strug- 
gle now  prevailing  throughout  the  world,  the  older  doc- 
trine will  not  yet  crop  up  again,  and  the  essential  weak- 
ness of  the  Judiciary  result  in  a  complete  denial  to  them 
of  any  Supremacy,  or  even  the  occasional  refusal  to 
allow  the  enforcement  of  specific  decrees  entered  by 
them. 


INDEX 


Adams,  John,  49,  52,  56,  193, 
196. 

Adams,  Sam,  quoted,  166. 

Adams's  "Gallatin,"  cited,  213. 

Alien  and  Sedition  Acts,  219. 

"American  Colonial  Govern- 
ment," Oliver  Morton  Dick- 
erson,  cited,  20,  23,  26,  104. 

American  Doctrine,  The,  9  et 
seq.,  46,    134  et  seq. 

"American  Doctrine,  The."  See 
Thayer. 

"American  Doctrine  of  Judicial 
Supremacy,  The,"  Charles 
Grove  Haines,  cited,  35,  46, 
208. 

American  Historical  Review, 
40,  60,  61,  135,  174,  179,  foot- 
notes. 

"American  Judiciary,  The." 
See  Baldwin. 

American  Law  Review,  7,  8, 
12,  60,  75,  174,  194,  223,  230, 
footnotes. 

American  Political  Science  Re- 
view, 12,  74,  128,  148,  foot- 
notes. 

American  Quarterly  Review, 
194,  218,  footnotes. 

"American  State  papers,  Misc.," 
cited,  178. 

"Annulment  of  Legislation." 
See  Horace  A.  Davis. 

'TTPhantom  Precedent,"  cited, 
60. 


"Appeals  from  Colonial  Courts 
to  the  King  in  Council"  etc., 
Harold  D.  Hazeltine,  24, 
footnote. 

Appleton's  Dictionary,  cited,  72. 

Argentina,  12. 

Aristides.    See  Hanson. 

Ashe,  Judge,  113. 

Aurora,  quoted,   182,  216. 

Austin  v.  Trustees,  176. 

Australia,  12. 

Bacon's  "Abridgment,"  57. 

Bahamas,  22. 

Baldwin,  Simeon  E.,  cited,  168, 
185,  203;  quoted,  209. 

Bancroft,  George,  quoted,  236, 
237- 

Bank  of  the  United  States,  173. 

Bassett,  136,  171. 

Batchellor,  Albert  S.,  75,  foot- 
note. 

Battle's  "Address  on  the  His- 
tory of  the  Supreme  Court," 
cited,  114,  120,  217. 

Bayard  v.  Singleton,  101-123, 
129,  133,  176. 

Beard,  Professor,  148,  foot- 
note. 

Beatty,  Major,  77. 

Benson,  Egbert,  86. 

Benton's  "Abridgment,"  cited, 
194,  219. 

Bidwell,  68. 

Bismark,  207. 


241 


242 


INDEX 


Black,    Attorney-General,   231 ; 

quoted,  232. 
Blair,   Chancellor,  64,   180. 
Bland,  51. 
Blount,  149. 
Bolivia,  12. 

Bonham's  case,  31  et  seq.,  57. 
Boudinot,  Elias,  cited,  62;  173. 
Bowman  v.  Middleton,  175. 
Brearly,  David,  62,  134,   135. 
Breckenridge,  193. 
Brevard,  cited,  218. 
British  Colonies  in  America,  15 

et  seq. 
Brodhead,    John    R.,    "History 

of  New  York,"  cited,  41. 
"Brutus."     See   Yates. 
Buchanan,  James,  230,  231. 
Buckalew,  235,  footnote. 
Burney,  cited,  202. 
Burr,  Aaron,  228. 
Butler,  Pierce,  160. 

Calhoun,   154,   156. 

Call's  Reports,  cited,  168. 

"Camden,"  182. 

Campbell    187. 

Campbell  s  "Life  of  Broug- 
ham," cited,  214. 

Canada,  12. 

Carpenter,  Prof.  William  S., 
cited,  116,  206. 

"Centinel,"  164. 

Chalmers,  George,  cited,  37,  41. 

Chase,  Judge,  cited,  161 ;  quot- 
ed,  188,  189,  190,  192,  215. 

"Chronicles  of  Pennsylvania," 
Charles  P.  Keith,  cited,  28. 

Circuit  Courts,  178  et  seq. 

City  of  London  v.  Wood, 
cited,  32. 

Coke,  Lord,  31  et  seq.,  39;  doc- 
trine of,  48  et  seq.,  89,  102, 
footnote,  103. 

Colden,  Gov.  Cadwallader, 
quoted,  25,  42. 


"Colonial  Appeals  to  the  Privy 
Council,"  Arthur  Meier 
Schlesinger,  cited,  23. 

"Colonial  Government."  See 
Dickerson. 

Commonwealth    v.    Caton,    63, 

Commonwealth  v.  Mann,  202. 

Comyns'  Digest,  57. 

Confiscation  Acts,  108  et  seq. 

Congressional  Record,  cited, 
206. 

Connecticut,  68,  94,  99,  122, 
132;  136,  167,  171,  177,  186, 
193. 

Constitutional  Convention.  See 
Federal  Convention. 

Conway's  "Randolph,"  cited, 
127. 

Cooley,  7. 

Cooper  v.  Telfair,  190  et  seq. 

Corwin,  Edward  S.,  cited,  60, 
67,  182,  185,  188. 

Council  of  Censors,  67. 

"Courts,  the  Constitution,  and 
the  People,  The."  See 
McLaughlin. 

Coxe,  Brinton  ("Judicial  Pow- 
er and  Unconstitutional  Leg- 
islation"), 8,  9;  cited,  24, 
70,  71,  72;  quoted,  97;  III, 
118,  120,  133,  147,  148. 

"Critical  Period,  The,"  80  et 
seq. 

Cuba,  12. 

Curtis,  235,  footnote. 

Curtis's  "Life  of  Buchanan," 
cited,  130. 

Cushing,  John,  55,  quoted,  56, 
footnote. 

Cushing,  William,  56,  191, 
192. 

Dallas,  A.  J.,  cited,  178,  179, 
184,  185,  187,  188,  190,  191. 

Dana,  quoted,  188,  footnote; 
193. 


INDEX 


243 


Davie,  William  R.,  114,  115, 
116,  118,  119,  120,  148,  168. 

Davis,  Andrew  McF.,  40,  foot- 
note. 

Davis,  Horace  A.,  cited,  65, 
171,  172,  ("Annulment  of 
Legislation"),  235. 

Davis,  Warren  R.,  cited,  172. 

Dawson,  Henry  B.,  83,  91. 

Declaration  of  Independence, 
28. 

Delaware,  63,  99,  137,  168,  193. 

"Diary  of  Gideon  Welles,  The," 
cited,  235,  236. 

Dickerson,  Oliver  Morton,  20, 
?3K  26,  37,  39,  75,  104. 

Dickinson,  Governor,   136,   168. 

Disraeli,  quoted,  239. 

"Doctrine  of  Judicial  Review." 
See  Corwin. 

Dodd,  Walter  R,  cited,  174. 

Doolittle,  Judge,  235,  footnote. 

Dred  Scott  decision,  231,  232. 

Duane,  178,  footnote. 

Dudley,  Governor,  47,  footnote. 

Duguit,  Professor,  13,  footnote. 

Eakin  v.  Raub,  194,  footnote; 

203. 
Edelen,  T.  L.,  76,  footnote. 
"Elector."    See  Iredell. 
Elliot's  "Debates,"  cited,  65,  81, 

127,    135,    150,    153,    166,    167, 

168. 
Ellsworth,  Oliver,  92,  134,  136, 

138,  148;  quoted,  167,  172. 
Emerick  v.  Harris,  202. 
"English  Common  Law  in  the 

Early    American     Colonies," 

Paul  Samuel  Reinsch,  cited, 

38,  102. 
Evarts,  cited,  235. 

Farrand,  Prof.  Max,  cited,  127- 
132,    134,    136-139,    142,    143, 


145,    149,    150,    160,    164,   167, 

179,  181,  185. 
Federal   Convention,  7,   10,   11, 

62,  80,  101,  108-123,  213. 
Federalist,    The,   51,    152,    158, 

162,  163,  171,  223. 
Few,   149,   171. 
Filson  Club,  77,  footnote. 
Finch,  cited,  38. 
Finland,  12. 

Flanders,  Henry,  cited,  171. 
Force  Bill,  155. 
Ford,    Paul    Leicester,    94,   99, 

161,  162,  footnotes. 
Fowler,  Judge,  235,  footnote. 
France,  13,  footnote. 
Freneau,  182. 
Frost  v.  Leighton,  40. 

Garner,  Prof.  James  W., 
quoted,  12,  13. 

Genet,  Edmund   Charles,   185. 

Georgia,  132,  168,  203. 

German  Empire,  207. 

Germans,  205. 

Gerry,  Elbridge,  129,  132,  133, 
136,  148;  quoted,  161. 

Gibson,  Judge,  194,  footnote; 
203. 

Giddings  v.  Brown,  38. 

Girardin's  "Virginia,"  60,  foot- 
note. 

jlenn,  Thomas  Allan,  135,  foot- 
note. 

Goodell,  A.  C,  Jr.,  96,  foot- 
note. 

Grant,  U.  S.,  quoted,  235,  236, 
239. 

Gray,  Justice,  cited,  49,  56,  57. 

Grayson,  168. 

Great  Britain,  19,  40.  See  also 
British  Colonies  and  Treaty 
of  Peace. 

Grimes,  235,  footnote. 

Griswold,  193. 

Groesbeck,  235,  footnote. 


244 


INDEX 


"Growth  of  the  Constitution." 
See  Meigs. 

Haines,  Charles  Grove,  cited, 
35,  46. 

Hallam's  "Constitutional  His- 
tory of  England,"  cited,  214. 

Halstead,  176,  footnote. 

Ham  v.  McClaws,  168  et  seq., 

175. 

Hamilton,  Alexander,  quoted, 
86,  92,  148,  151,  152,  154, 
158;  quoted,  163;  168,  187; 
quoted,  223. 

Hamilton,  J.  C,  cited,  86. 

Hanson,  Alexander  Contee,  160, 
quoted,  161. 

Hardaway,  Bland  v.,  51,  foot- 
note. 

Harris  and  Johnson,  cited,  176. 

Harvard  Law  Review,  96,  203, 
footnotes. 

Hawkins,  92. 

Hayburn  case,  The,  178  et  seq. 

Haywood,  cited,  176. 

Hazeltine,  Harold  D.,  "Appeals 
from  Colonial  Courts  to  the 
King  in  Council,"  cited,  24. 

Hemphill,  193;  quoted,  194. 

Henderson,    193;    quoted,    194, 

235. 

Henry,  Patrick,  quoted,  168. 

Henry's  "Messages  of  Presi- 
dent Buchanan,"  cited,  232. 

"Historical  Collections  of  the 
American  Colonial  Church," 
Stevens,  cited,  43. 

"History  of  the  Constitution." 
See  Bancroft. 

"History  of  the  Revolt  of  the 
American  Colonies."  See 
Chalmers. 

Hohenzollerns,  207. 

Holmes  v.  Walton,  61,  62,  63, 
72,  96,  135,  176,  186,  201. 

Hopkinson,  Edward,  194,  foot- 
note. 


Hopkinson,  Judge,  218. 
Houston,     William     Churchill, 

cited,  135. 
Hutchinson,  Judge,  55,  56. 
Hylton  v.   United   States,   187, 

et  seq. 

Identical  Law,  The,  97,  foot- 
note; 108,  148  et  seq. 

Ingersoll,  Charles  Jared,  176, 
187,  191,  194,  203,  footnote. 

Iredell,  James,  101  et  seq.,  118, 
120;  quoted,  153;  154,  168; 
quoted,  215. 

Izard,   Mr.  92. 

Jackson,  Andrew,  205,  223,  230, 

233. 

Jefferson,  Thomas,  60,  foot- 
note; quoted,  94,  95,  96;  126, 
223;  quoted,  228. 

Johnson,  Andrew,  223,  225. 

Johnson,  Dr.,  113,  136,  146,  149. 

"Judicial  Bulwark  of  the  Con- 
stitution,  The."   See   Melvin. 

"Judicial  Control  of  the  Ad- 
ministrative and  Legislative 
Acts  in  France."  See  Gar- 
ner. 

Judicial  Method,  The,  151  et 
seq. 

"Judicial  Power  and  Unconsti- 
tutional Legislation."  See 
Coxe. 

"Judicial  Tenure  in  the  United 
States."     See  Carpenter. 

Judiciary  Act  of  September  24, 
1789,  The,  170,  194. 

Kamper  v.   Hawkins,  169,   175, 

218. 
Keith,  Charles   P.,  "Chronicles 

of    Pennsylvania,   1688-1748," 

cited,  28. 
Kelby,  Mr.,  78,  footnote. 


INDEX 


245 


Kent's  "Commentaries,"  quoted, 

198. 
Kentucky,  76  et  seq.,  177,  193, 

203. 
King,  149. 

King  in  Council,  18  et  seq.,  173. 
Kirby's  Reports,  cited,  68. 

Law  of  Nations,  87. 

Lecky's   "England,"   cited,  213. 

"Lectures  on  Law."  See  Wil- 
son. 

Lee,  Charles,  187,  196. 

Leighton.     See  Frost. 

Leisler,  41. 

Lewis,  Morgan,  86. 

"Life  of  Calhoun."  See  Meigs. 

Lincoln,  Abraham,  223  ;  quoted, 
232,  233. 

"Lives  and  Times  of  the  Chief 
Justices."    See  Flanders. 

Livingston,  62,  86,  135,  229. 

Locke,  John,  70. 

Lords  of  Trade  and  Planta- 
tions, 18  et  seq. 

Madison,  James,  81,  126,  127, 
128,  131 ;  quoted,  137-138,  141, 
143-146,  passim;  148-150,  154, 
158,  192,  196,  197 ;  quoted,  219, 
223;  quoted,  225,  226,  228. 

Maine,  Sir  Henry,  quoted,  221. 

Mansfield,  Lord,  87,  footnote. 

Marbury  v.  Madison,  8,  192, 
195,  196,  201,  228. 

Marbury,  William,   196  et  seq. 

Marshall,  John,  quoted,  153; 
154,  167,  192,  197,  198;  quot- 
ed, 199-201 ;  228 ;  quoted,  229. 

Marshall's  "Washington,"  cited, 
185. 

Martin,  Luther,  132,  134,  136, 
137,  138,  139.  140;  148,  foot- 
note; 161,  footnote;  quoted, 
163,  164. 


Maryland,  99,  136,  160,  176,  193. 
Mason,    George,    50,    132,    136, 

139  140,  148. 
Mason,  Jeremiah,  73. 
vlason,  Stevens  T.,  193;  quoted, 

219. 
Massachusetts,  21,  23,  33,  34,  98, 

166,  193. 
May's    "Constitutional   History 

of  England,"  215. 
McClary,  Elizabeth,  173. 
McClary  v.  Gilman,  74. 
McKean,  165. 
McLaughlin,  Andrew  C,  cited, 

54,  236;  quoted,  237-238. 
McMaster,     Professor     ("The 

United  States"),  cited,  54,  71, 

72,  213. 
McRee's  "Iredell,"  120-121. 
Meader,  L.  H.,  67,  footnote. 
Meigs,  William  M.,  cited,  7,  9, 

12,    143,    155,    174,    194,    223, 

230. 
Melvin,  Frank  E.,  cited,  66,  74, 

97,    128,    136,    148,    149,    168, 

170,  171. 
Menges  v.  Wertmann,  203. 
Mexico,  12. 
Monroe,  222  et  seq. 
Moore,  Alfred,  113. 
Moore,  B.  F.,  cited,  202. 
Morris,     Gouverneur,     63,     72, 

144;  148,  footnote;  193. 
"Mother  of  Parliaments,"   12. 
Murphy,  cited,  176. 

Nash,  Abner,  113. 

Nash,  Thomas,  235,  footnote. 

National  Gazette,  182. 

New  Hampshire,  23,  73  et  seq., 

149,  177. 
New  Jersey,  21,  23,  61,  63,  99, 

122,    132,   134,    136,    137,    176, 

177. 
New  Jersey  Plan,  The,  136  et 

seq.,  141. 


246 


INDEX 


"New  Jersey  Precedent,  The," 
See  Austin  Scott. 

New  York,  21,  67  et  seq.,  83, 
99,  122,  137,  166,  168,  177, 
178,  193. 

"New  York  Colonial  Docu- 
ments," 25,  footnote. 

New  York  Packet  and  the 
American  Advertiser,  The, 
91,  footnote. 

New  Zealand,  12. 

Norris  v.  Clymer,  203,  footnote. 

Northy,  Attorney-General,  104. 

North  Carolina,  21,  22,  26,  99, 
108,  in,  120,  122,  168,  176, 
T-77,    193,   217,    footnote. 

Nullification,  155. 

"Observations."  See  Gerry. 
Ogden  v.  Witherspoon,  176. 
Ohio,  203. 
"Opinions     of     the     Attorneys 

General,"  cited,  230,  232. 
Otis,  James,  49;  quoted,  50. 

Page  v.  Pendleton,  175. 

Paterson,  William,  62,  135,  171 ; 
quoted,  186,  187. 

Patterson,  235,  footnote. 

Pendleton,  Judge,  quoted,  65; 
168. 

Pennsylvania,  18,  23,  65,  66,  176, 
177,  180,  185,  186,  202,  227. 

"Pennsylvania  and  the  Federal 
Convention,"  McMaster  and 
Stone,  cited,  227. 

Pennsylvania  Magazine  of  His- 
tory and  Biography,  67,  foot- 
note. 

Pennsylvania  Packet  and  Daily 
Advertiser,  113;  quoted,  116; 
216,  footnotes. 

Pension  Cases,  216. 

Pension  Laws,  192. 

Pensions,  178. 

Perry,  William  Stevens,  cited, 
39,  43- 


Peters,  Judge,   180;  cited,  230. 

Philips,  Josiah,  60. 

Pierce,   149. 

Pinckney,  Charles,  136. 

Pinckney,   C.  C,   168. 

Pinckney's  Plan,  14. 

Pirtle,  Alfred,  76,  footnote. 

Plumer,  William,  73,  74,  75, 
footnotes. 

Plumer's  "Life  of  William 
Plumer,"  cited,  174. 

Political   Club,  The,  76  et  seq. 

Political  Science  Quarterly,  23, 
footnote. 

Pratt,  43,  104,  footnotes. 

Princess  of  Orange,  230,  foot- 
note. 

Quieting  and  Confirming  Act, 
109  et  seq.,  186. 

Randolph,  Edmund,  127,  130, 
148,  footnote;  151,  footnote; 
168,  184. 

Randolph  Plan,  The,  137. 

Ratifying  Conventions,  158-169. 

"Records."  See  Farrand. 

Reed,  136. 

Reinsch,  Paul  Samuel,  cited,  38, 
102. 

"Relation  of  the  Judiciary  to 
the  Constitution."  See  Meigs. 

"Remarks  to  the  People  of 
Maryland."  See  Hanson. 

"Representation  and  Sectional- 
ism in  South  Carolina."  See 
Schaper. 

Respublica  v.  Duguet,  176. 

Respublica  v.  Gordon,  95,  foot- 
note. 

"Review  of  American  Colonial 
Legislation."  See  Russell. 

Rhode  Island,  23,  70,  94.  99, 
104,  122,  149,  177. 

"Rights  of  British  Colonies  As- 
serted and  Proved,"  James 
Otis,  cited,  50. 


INDEX 


247 


Rives,  W.  C,  150,  footnote. 

Robin  v.  Hardaway,  51,  foot- 
note. 

Ross,  193. 

Rousseau,  30. 

Rumania,  12. 

Russell,  Elmer  Beecher,  20-23, 
25,  27,  39,  44,  47,  footnotes. 

"Rutgers  College  Publications," 
footnote. 

Rutgers  v.  Waddington,  67,  68, 
71,  73,  80  et  seq.,  119,  122, 
143,  202. 

Rutledge,  145,  168,  193. 

Schaper,  William  A.,  cited,  45. 

Schlesinger,  Arthur  Meier 
("Colonial  Appeals  to  the 
Privy  Council"),  cited,  23,  41. 

Schouler's  "United  States," 
cited,  213. 

Scott,    Prof.    Austin,    61,    72, 

135. 

Sergeant  and  Rawle,  cited,  203. 

Sharswood,  George,  184,  foot- 
note. 

Sherman,  136,  148,  footnote. 

Smith,  Melancthon,  quoted,  166. 

"Some  Recent  Attacks  on  the 
American  Doctrine  of  Judi- 
cial Power."  See  Meigs. 

South  African  Republic,   12. 

South  Carolina,  44,  132,  136, 
160,  168,  169,  175,  177,  193, 
203,  218. 

Spaight,  Richard  Dobbs,  117; 
quoted,  120. 

Sparks's  "Life  of  Gouverneur 
Morris,"  72,  footnote. 

Speed,  Miss  Mary,  76,  77, 
footnotes. 

Speed,  Thomas,  76,  footnote. 
233,  234. 

Spencer,  Judge,  113,  114. 

Stamp  Act,  51,  52  et  seq.,  103. 

Stanbery,  235,  footnote. 


Stanley,  193. 

State  Rights,  155,  footnote. 

State  v.  Parkhurst,  61,  foot- 
note; 176. 

Statutes  at  Large  of  Pennsyl- 
vania, cited,  43. 

Steele,  168. 

Stidger  v.  Rogers,  77,  177- 

Stockdale  v.  Hansard,  214. 

Stone,  193. 

Story's  "Statutes  of  the  United 
States,"  cited,  178. 

Strong,  171. 

Sumner,  Charles,  235,  footnote. 

"Supreme  Court  and  the  Con- 
stitution," See  Beard. 

"Supreme  Court  and  Unconsti- 
tutional Legislation,  The." 
See  Moore. 

Symmes,  Judge,  62,  footnote. 

Symonds,  Magistrate,  38. 

Symsbury  Case,  The,  68  et 
seq. 

Talbot,   39,    footnote;   42,    104, 

footnote. 
Taney,    Roger   B.,    184;    cited, 

230. 
Taylor  v.  Reading,  176. 
Thayer,   Prof.  J.   B.,   185,  203, 

237. 
Tilghman,  E.,  quoted,  191. 
Todd,  Thomas,  77,  78. 
Todd,  Yale,   184  et  seq. 
Tories,  108,  109,  126. 
Tracy,  193. 
Treaty    of    Peace    with    Great 

Britain,    83,    84,    87,    92,    96, 

108,   126. 
Trent,  William  P.,  60,  footnote. 
Trevett  v.  Weeden,  63,  70,  71, 

73,  96,  118,  119,   I49>  202. 
Trist,  N.  P.,  quoted,  150. 
Tucker's     "Blackstone,"    cited, 

173. 
Turner  v.  Turner,  175. 


248 


INDEX 


United  States  v.  Ferreira,  cit- 
ed, 185. 

United  States  v.  Foy,  176. 

United  States  v.  Yale  Todd, 
cited,   185;   187. 

United  States  v.  Villato,  186. 

University  of  Illinois,  12. 

Usher,  Lieutenant-Governor, 
147,  footnote. 

Van  Buren,  223,  230. 

Van  Buren's  "Political  Parties 

in  the  United  States,"  cited, 

228,  230. 
Van    Home's   Lessee   v.   Dor- 

rance,  185  et  seq. 
Varick,  Richard,  87. 
Varnum,  J.   M.,  63,  70,  71,  72, 

97,   118,   149. 
Vattel,   70,   118. 
Venezuela,  12. 
Vermont,  193. 

Vickers,  Judge,  235,  footnote. 
Viner's  Abridgment,  57. 
Virginia,    23,    26,    60,    63,    126, 

136,      168,      175,      177,      187, 

193. 
Virginia  Resolutions,  129. 


Washington,  George,  185. 
Wason    v.    Walter,    cited,    214. 
Webster,  Daniel,  73,  cited,  230. 
Welles,    Gideon,    quoted,    235- 

237',  239. 
Western    Law    Monthly,    203, 

footnote. 
Wheaton,  cited,  229. 
Whitaker,  Judge,  44,  45. 
White  v.  Kendrick,  175,  218. 
Whittington  v.   Polk,  176,  177. 
Willcocks,    William,    62,    foot- 
note. 
Williams,  113,  166;  quoted,  167. 
Wilson,   James,    139,    141,    148; 

quoted,  165;  173,  180;  quoted, 

226,  227. 
Wirt,  William,  quoted,  229. 
Worcester  v.   Georgia,  230. 
"Writs  of  Assistance,"  Justice 

Gray,  cited,  56,  57. 
Wythe,  Judge,  quoted,  64,  153, 

footnote. 

Yates,  Robert,  quoted,  162. 
Yeates,  cited,  176. 
Yorke,  Judge,  39,  footnote;  42, 
43,  104. 


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